Foucault, Crime and Power: Problematisations of Crime in the Twentieth Century Christian Borch 9780415738460, 9781315817309

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Foucault, Crime and Power

This book presents a Foucauldian history of problematisations of crime, with a particular focus on the twentieth century. It considers how crime has been conceived as a problem and, by scrutinising the responses that have been adapted to deal with crime, demonstrates how a range of power modalities have evolved throughout the twentieth century. Christian Borch shows how the tendency of criminologists to focus on either disciplinary power or governmentality has neglected the broader complex of Foucault’s concerns: ignoring its historical underpinnings, whilst for the most part limiting studies to only very recent developments, without giving sufficient attention to their historical backdrop. The book uses developments in Denmark – developments that can be readily identified in most other Western countries – as a paradigmatic case for understanding how crime has been problematised in the West. Thus, Foucault, Crime and Power: Problematisations of Crime in the Twentieth Century demonstrates that a Foucauldian approach to crime holds greater analytical potentials for socialogical and criminological research than have so far been recognised. Christian Borch is Professor of Political Sociology in the Department of Management, Politics and Philosophy, Copenhagen Business School, Denmark. His previous books include Niklas Luhmann (Key Sociologists) (Routledge, 2011) and The Politics of Crowds: An Alternative History of Sociology (Cambridge University Press, 2012).

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Foucault, Crime and Power

Problematisations of Crime in the Twentieth Century

Christian Borch

First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 a GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Christian Borch The right of Christian Borch to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-415-73846-0 (hbk) ISBN: 978-1-315-81730-9 (ebk) Typeset in Garamond by RefineCatch Limited, Bungay, Suffolk

For Albert and Martha

. . . a criminal’s life can often be a picnic compared with the strenuous brainwork he imposes on the pundits of the law. Robert Musil: The Man without Qualities

Contents

Acknowledgements

ix

Introduction: Foucauldian cues

1

1

The birth of criminology

19

2

For the protection of society

32

3

The rise and fall of the treatment ideal

54

4

Serving the community

77

5

Crime prevention: towards a totalitarian biopolitics

95

6

Empowerment and repression

120

Conclusion: the twentieth century and beyond

143

Notes References Index

152 171 187

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Acknowledgements

A previous version of this book was published in Danish in 2005 under the title Kriminalitet og magt: Kriminalitetsopfattelser i det 20. århundrede. I have made some light revisions for this English version, elaborating on some issues and discussions and shortening others somewhat. I would like to thank all the people who contributed constructive criticism and encouragement to work on the original book: Niels Åkerstrøm Andersen, Flemming Balvig, Anders la Cour, Jørgen Dalberg-Larsen, Vagn Greve, Roar Hagen, Ole Hammerslev, Lars Holmberg, Holger Højlund, Nauja Kleist, Lars Thorup Larsen, Tobias Lindeberg, Nils Mortensen, Thomas Bjerre Pedersen, Nikolas Rose, Inger-Johanne Sand, Annika Snare, Svend Roald Thorhauge, Steen Vallentin and Rasmus Heugh Wandall, as well as the late Birgit Lindberg. Special thanks to Marius Gudmand-Høyer who has read and commented on some of the new sections added to this English version. Thanks also to Tam McTurk for translating the Danish original into English and for copy-editing the revised parts as well as to Laura Mortensen for helping with the index. Finally, special thanks, as always, to Susanne B. Thaarup. Parts of Chapter 5 have previously appeared in the article ‘Crime Prevention as Totalitarian Biopolitics’, in Journal of Scandinavian Studies in Criminology and Crime Prevention 6(2), 2005: 91–105. Figure 3.1 is reproduced from Nicolas Andry, L’orthopédie ou l’art de prévenir et de corriger dans les enfants les difformités du corps, Paris: Lambert et Durand, 1741, T. I, p. 282. Reproduced with courtesy of BIU Santé. Figure 3.2 is reproduced from Georg Kristoffer Stürup, Treating the ‘Untreatable’: Chronic Criminals at Herstedvester, p. v. © 1968 The Johns Hopkins Press. Reprinted with permission of Johns Hopkins University Press.

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Introduction: Foucauldian cues

Problematisations of crime The question of how society responds to, and ought to respond to, crime is not just a classical subject of criminological and sociological reflection, it is also a topic of ongoing and often heated political debate. Similar to discussions of, for example, health, education and environmental issues, much of this debate focuses on the practical means of governing crime and its consequences. This is understandable, yet often such debate takes place in a void, where the historical background to the present concerns is virtually ignored. As a result, much political – but at times, also scholarly – discussion of crime ignores the fact that the ways in which we conceive of and respond to crime are historically conditioned. This is a potentially grave omission, since sensitivity to the historical dimension can help to demonstrate that much of what we presently take for granted in the field of crime and crime control has, in fact, undergone profound historical transformations over the past 150 years. Put simply, our conceptualisations of crime are characterised by contingency, meaning, following the German sociologist Niklas Luhmann’s definition, that they are ‘neither necessary nor impossible’ (1998: 45). But that is not all. To the dismay of some, a historical view can also make clear that there is little to suggest that the ways in which we conceive of and respond to crime reflect an increase in humanity, rationality or the like. In fact, a historical account can uncover a number of uncanny convolutions, in which ideas generally thought to have long been consigned to the historical dustbin are resurrected in contemporary new guises. To achieve a full understanding and critical assessment, these recurrences make it imperative that the historical perspective be taken seriously. This is what this book strives to do. Specifically, it presents a historical analysis that seeks to analyse how crime has been conceived of and responded to in the twentieth century. Drawing on the work of Michel Foucault, this is studied as a history of problematisations of crime. Applying a Foucauldian approach to the topic of crime is not new. Famously, Foucault himself set an original agenda for the analysis of crime with his seminal book Discipline and Punish: The Birth of the Prison (1977). In it, he presented a comprehensive historical analysis of the transformation from the

2 Foucault, crime and power

spectacular forms of public physical punishment of the seventeenth and eighteenth centuries to the kind of imprisonment based on surveillance and discipline that gained ground in the nineteenth century. While prison was certainly at the heart of this analysis of emergent disciplinary mechanisms, the book’s perspective extended far beyond the penal field. On the one hand, it uncovered a new regime of power, namely a transition from sovereignty to discipline, i.e. from a negative conception of power to a productive, formative notion of how power should be exercised. On the other hand, Discipline and Punish studied ‘changes in the problematisation of relationships between delinquency and punishment’ (Foucault 1989a: 456, italics added). Unfortunately, these points were lost on many criminologists, who read the book as a ‘real history’ of the modern prison. Referring to Foucault’s analysis of the significance of Jeremy Bentham’s panoptic model for the gestation of disciplinary power, David Garland, for one, suggested that ‘Foucault seems to assert that “Benthamism” is, in fact, a deep description of the actual nature of modern punishment’ (1990: 163; see also Godfrey et al. 2008: 151). I shall return to why interpretations of this sort misconstrue Foucault’s objectives. Misinterpretations aside, the bigger problem with his book is that, paradoxically, it might be argued that it was too successful. By this I mean that much of the discussion of Foucault’s work within criminology and related fields has been with sole or main reference to Discipline and Punish (e.g. Cohen 1995; Godfrey et al. 2008; Hunt and Wickham 1994; Mathiesen 1997). While that book is indisputably a classic – worth reading and re-reading – it is, nonetheless, only one masterpiece in a grander, illuminating œuvre. And this is where the problem arises: the focus on Discipline and Punish means that Foucault’s many other productive insights are easily overlooked, especially those put forward in his later work. Of course, I am painting with a broad brush here. Many scholars have actually worked hard to elucidate fruitful analytical points from Foucault’s post-Discipline and Punish writings. For example, in the 1990s and 2000s, there was widespread interest in the notion of governmentality, which Foucault coined in his 1978 Collège de France lectures on Security, Territory, Population (2007). This wave of governmentality studies did not go unnoticed among criminologists and socio-legal scholars (e.g. Andersson 2002; Garland 1997a; 2001; Krasmann 2003; O’Malley 1996; 2010; Rose 1999; Simon 2007; Wickham and Pavlich 2001). Similarly, other criminologists have drawn inspiration from other parts of Foucault’s rich œuvre, including in a few cases some of his later work (e.g. Feeley and Simon 1992; Valverde 2008; Voruz 2011; Welch 2011). In spite of such valuable studies, I would contend that Foucault’s work holds greater analytical potential than has been actualised in previous applications of his thinking within criminology and related fields. Specifically, this book teases out three aspects that distinguish it from most other Foucauldian analyses of crime and related matters. One is the timespan

Introduction 3

of the study. Foucault’s chair at the Collège de France was in the History of Systems of Thought. The historical component of this title is not coincidental. The majority of his work adopted a historical approach (granted, of a particular kind) that traversed long historical periods in order to identify various transitions and continuities. I have already mentioned how Discipline and Punish traced epochal changes in punishment (and the exercise of power) based on an analysis of historical data from the mid-eighteenth to the midnineteenth centuries. Similarly, to take a further example, in History of Madness, Foucault explored conceptualisations of madness from the end of the Middle Ages to the nineteenth century (2006). What I wish to draw attention to here is that Foucault was immersed in indepth historical studies that spanned substantial time periods. Unfortunately, this methodological aspect of his work has had little resonance within criminology. Certainly, some criminological studies have drawn on Foucault and analysed historical trends, but far too often such studies have been limited in terms of their historical span (the most important exceptions being Garland 1985; Wetzell 2000). For example, much of the governmentality-inspired literature has focused on post-1970 developments, leaving aside any systematic treatment of earlier phases. This book seeks to be more loyal to Foucault’s approach, in the sense that, by focusing on the entire twentieth century, it covers a much longer time period than is the norm in Foucauldian criminological studies. One benefit of this expansive historical analysis is that it provides a better sense of how recent (or contemporary) problematisations of crime have emerged, at least in part, as a response to and/or as a convoluted continuation of previous problematisations – something that a narrower analytical timeframe would have found more difficult to unearth (see e.g. Foucalt 2009). Another dimension separating this book from most other Foucauldian work within criminology is that it does not accord priority to any single Foucauldian notion of power. This is meant to correct the problem I identified above – namely, that too often Foucault has been deployed in ways in which discipline in particular (and, to a lesser extent, governmentality) have overly determined the frame of analysis. As a result, there has been a tendency to suggest either that discipline is everywhere or that discipline is the only power modality at play in the present. To some extent, Foucault himself is guilty of this. After all, in Discipline and Punish he posited that we may still live in ‘a disciplinary society’ in which surveillance has replaced spectacle (1977: 216–18). He soon modified that idea substantially, however, but if read in isolation, it might easily give the impression that it is in fact possible to analyse virtually any exercise of power today as a matter of discipline. Yet, a great deal of Foucault’s subsequent work did much to complicate the notion that discipline is the central diagnostic category of the present, thereby demonstrating the usefulness of working with a broad analytics of power that is sensitive to the manifold ways in which power may be exercised in specific historical contexts, including our own. As a corollary of this, Foucault in

4 Foucault, crime and power

effect put forward a highly differentiated – at times, even hybrid – idea of power that made it possible to attend to and critically analyse power not only when exercised in a sovereign or disciplinary manner, but also when it assumed governmental or biopolitical forms. By drawing on and seeking to deploy a wide array of elements from Foucault’s analytics of power, as well as its basic thrust, this book hopes to be able to deal with twentieth-century problematisations of crime in a manner that does not prioritise any single concept of power, but is at once empirically sensitive and analytically subtle in a way that allows for the possible coexistence of simultaneous forms of power. I shall come back to some of the key elements in Foucault’s analytics of power shortly. Before doing so, however, I wish to attend to the third key aspect of Foucault from which I draw inspiration, one that sets this study aside from most other adaptations of his thinking within criminology – namely, the notion of problematisation. Throughout his career, Foucault often reflected upon his own work in writing, lectures and interviews. These are often illuminating, since it was here that Foucault drew out – sometimes in a reconstructive, post hoc manner – the broader analytical ambitions underpinning and characterising his approach. Interestingly, in his final years, Foucault increasingly conceptualised his work via the concept of problematisation. For example, in a series of lectures he delivered at the University of California, Berkeley, in 1983, Foucault stated that: What I tried to do from the beginning was to analyze the process of ‘problematization’ – which means: how and why certain things (behavior, phenomena, processes) became a problem. Why, for example, certain forms of behavior were characterized and classified as ‘madness’ while other similar forms were completely neglected at a given historical moment; the same thing for crime and delinquency, the same question of problematization for sexuality. (2001b: 171, italics in the original) Regrettably, and quite surprisingly, the concept of problematisation has barely been picked up by criminology or the wider field of social theory (a few exceptions include Gudmand-Høyer 2013; Lemke 2011; LopdrupHjorth 2013; O’Leary 2010; see also Borch 2012). This is surprising given Foucault’s own emphasis on problematisation. It is also regrettable, since problematisation points to a novel way of undertaking historical analysis. As a result, when this book deploys problematisation analysis as its basic approach, it proceeds in a manner consistent with the final phase of Foucault’s thinking – and it corrects an unfortunate neglect of this part of Foucault’s work within criminological circles. This approach also explains the title of the book. My central ambition is not to analyse in detail what Foucault has said about crime (although some

Introduction 5

aspects of his thought on this topic will be addressed below). Rather Foucault’s work is taken as an inspiration for conducting a particular kind of analysis of phenomena not examined by Foucault himself, namely twentieth-century problematisations of crime in Denmark. Conducting a problematisation analysis, which spans a long time period, and combining it with a nuanced analytics of power form the key elements of what it means, in my view, to work in a Foucauldian manner. While Foucault is therefore mainly used in this book as an inspiration to the approach underpinning the investigation, especially his analytics of power will be drawn upon throughout the book to comment on various developments. However, here and there I will also bring in other analytical inspiration to make sense of the developments under study, including selected notions from the work of Niklas Luhmann (on Luhmann and Foucault, see Borch 2011). Problematisation analysis Foucault never systematically outlined what a problematisation analysis entails. However, even if his thoughts on problematisation are somewhat scattered, it is nevertheless possible to distil some important features. In the following, I emphasise four points that cover key aspects of what it would mean to conduct a problematisation analysis (drawing on more extensive discussions by Gudmand-Høyer 2013; Lopdrup-Hjorth 2013; O’Leary 2010; see also Borch 2012). To begin with, the word problematisation might sound slightly awkward, and easily lends itself to misunderstanding. The first pitfall to avoid is to conceive of problematisation as another term for claiming that something – say, a particular way of responding to crime – is problematic. As Marius Gudmand-Høyer aptly notes: it is important not to misconstrue the problematization and take it to account for what is acted out through the analytical processes; this activity should rather be termed ‘challenging’ or simply ‘criticizing’ something. By contrast, problematizations are the objects of the analysis, and this analysis operates essentially by means of historical exploration given that the problematizations themselves consist of historical processes. (2009: 4–5, italics in the original) In other words, conducting a problematisation analysis is not about pinpointing, critical-theory style, certain phenomena that appear unfair, unjust, stigmatising, etc. Rather, a problematisation analysis examines how, in a particular historical context, a phenomenon is rendered problematic and what responses are suggested to deal with it. In the context of the present study, this means exploring how and why certain forms of crime (as well as certain ways of responding to crime) became a problem throughout the twentieth century.

6 Foucault, crime and power

Second, a history of problematisations is intimately related to questions of power and truth, or as Foucault would put in some of his latest work, to questions of ‘the procedures by which people’s conduct is governed’ and ‘forms of knowledge (savoirs), studied in terms of their specific modes of veridiction’ (2011: 9; 2014). I shall come back to the notion of power shortly. Here it suffices to say that power is analysed in this book both in a general sense as the ‘conduct of conduct’ and in terms of more specific power modalities (sovereignty, discipline, governmentality, biopolitics, etc.). These power modalities are employed to examine practical responses to the problem of crime, especially with respect to the technological dimensions entailed by such responses, i.e. the specific ways of rendering operational, as it were, the supposedly optimal exercise of power (through particular institutions, sanctions, prevention strategies, etc.). The truth aspect is not about ‘an epistemology of Truth’, as Fréderéric Gros notes (2011: 344). Rather it relates to the ways in which a problematisation ‘makes something enter into the play of the true and false, and constitutes it as an object for thought (whether under the form of moral reflection, scientific knowledge, political analysis, etc.)’ (1989a: 456–7). The use of the term ‘play’ (elsewhere, Foucault speaks of ‘games of truth’, see 1992: 6) might appear to underplay the seriousness of what is at stake. Indeed, as Foucault notes in The Use of Pleasure, the problematisation analysis put forth in that book essentially aimed to write ‘a history of truth. It was a matter of analyzing [. . .] the problematizations through which being offers itself to be, necessarily, thought’ (1992: 11, italics in the original). What this entails for the present book is that attention is paid to the forms of knowledge and games of truth that are interrelated with the problematisations of crime. This is not to suggest any unidirectional connection between the two – as if, for example, specific types of criminological knowledge have caused particular problematisations. Rather, it implies an exploration of problematisations and configurations of power ‘to which different forms of knowledge are linked, between which one can establish relationships, conditional connections, but not cause and effect, nor a fortiori of identity’ (1989a: 462). Third, a problematisation analysis attends both to what are seen as particular difficulties at a given moment and to the responses suggested to deal with them. Echoing the above comment on the relations between knowledge and problematisations, Foucault is well aware that there is no unidirectional (let alone causal) relation between a particular difficulty and a possible response. The former does not determine the latter. Indeed, ‘[t]o one single set of difficulties, several responses can be made. And most of the time different responses actually are proposed’ (1989b: 421). For example, a particular type of criminal activity may constitute a difficulty, but that difficulty does not itself prescribe its own solution. This is precisely where the problematisation analysis enters. To quote Foucault at length: the work of a history of thought would be to rediscover at the root of these diverse solutions the general form of problematization that has

Introduction 7

made them possible – even in their very opposition; or what has made possible the transformations of the difficulties and obstacles of a practice into a general problem for which one proposes diverse practical solutions. It is problematization that responds to these difficulties, but by doing something quite other than expressing them or manifesting them: in connection with them it develops the conditions in which possible responses can be given; it defines the elements that will constitute what the different solutions attempt to respond to. This development of a given into a question, this transformation of a group of obstacles and difficulties into problems to which the diverse solutions will attempt to produce a response, this is what constitutes the point of problematization and the specific work of thought. [. . .] it is a question of a movement of critical analysis in which one tries to see how the different solutions to a problem have been constructed; but also how these different solutions result from a specific form of problematization. (1989b: 421–2) In short, the problematisation opens up a space for a variety of possible responses to the particular problem, and the problematisation analysis is then about examining the problematisation itself, as well as the problem–response configurations it engenders. Fourth, and somewhat related to this, a problematisation analysis is performed within a constructivist register, but that does not entail a denial of the ‘real’. This touches upon the often-voiced misunderstanding of Foucault that I mentioned earlier. While he did not intend to write the ‘real history’ of, for example, the prison, his analysis in Discipline and Punish was, of course, not disconnected from ‘reality’. As Foucault noted in another long quote: You may say to me: [. . .] Bentham’s Panopticon isn’t a very good description of the ‘real life’ in nineteenth-century prisons. To this I would reply: if I had wanted to describe ‘real life’ in the prisons, I wouldn’t indeed have gone to Bentham. But the fact that this real life isn’t the same thing as the theoreticians’ schemas doesn’t entail that these schemas are therefore utopian, imaginary, etc. One could only think that if one had a very impoverished notion of the real. [. . .] For another thing, these programmes induce a whole series of effects in the real (which isn’t of course the same as saying that they take the place of the real): they crystallize into institutions, they inform individual behaviour, they act as grids for the perception and evaluation of things. [. . .] if the prisons were seen to have failed, if criminals were perceived as incorrigible, and a whole new criminal ‘race’ emerged into the field of vision of public opinion and ‘justice’, if resistance of the prisoners and the pattern of recidivism took the forms we know they did, it’s precisely because this type of programming didn’t just remain a utopia in the heads of a few projectors. (1991: 81)

8 Foucault, crime and power

The point here is that texts such as Bentham’s should not be construed as representative, with the assumption that they correspond to or reflect reality. Rather, they should be interpreted in terms of their prescriptive content, i.e. the ways in which they advise that the social (and/or the government thereof) be constituted most efficiently. In this light, Bentham’s work is important because it contributed to the formation and assessment of reality – a proposition that aligns well with the ideas of performativity that have become increasingly popular in recent decades (e.g. MacKenzie 2006). In addition to this, Foucault sees every problematisation as ‘an “answer” to a concrete situation which is real’ (2001b: 172; see also 2007: 367). In other words, problematisations do not appear out of the blue – they are anchored in specific historical contexts. This does not mean that it is possible to draw inferences in a causal manner from the historical situation to a particular problematisation. Rather, it means that by exploring how a problematisation is an answer or response to a specific historical situation, a problematisation analysis in effect investigates how relations are established between ‘thought and reality’ or even between ‘truth and reality’ (2001b: 173). I have outlined four central aspects of what a problematisation analysis entails. It goes without saying that applying a problematisation analysis to the study of crime in the twentieth century does not imply that crime only emerged as a problem at this point in time. Much like illness and sexuality (Foucault 1989c: 414), crime has always been seen as a problem. However, a new way of problematising crime emerged at the end of the nineteenth century. In the early twentieth century, this led to radically new conceptions of and responses to crime – some of which still appear to be with us. Moreover, as indicated above, conducting a problematisation analysis means engaging in a very particular kind of historical study. For example, this book pays little attention to the ebbs and flows of crime statistics or in the number of prison inmates, which are other ways of exploring the history of crime and the responses to it. I am much more interested in how crime has been problematised. Let me round off this discussion by briefly reflecting upon some methodological issues pertaining to this study. To begin with, the book focuses on Denmark. There are two central reasons for this. First, over long stretches of time, Denmark neatly encapsulates the key problematisations replicated in most Western countries during the twentieth century. I am not claiming that developments in Denmark are in every way representative of how crime has been conceived of and responded to elsewhere. There is no denying that the Danish case may entail a number of specificities, especially in terms of how the problematisation of crime is embedded in a wider welfare-state context. Nor has Denmark ever experienced imprisonment on a scale and of an intensity equivalent to that of the USA (of course, the USA is exceptional on this point, and itself cannot be considered representative of Western developments). Nor do I claim that Danish problematisations of

Introduction 9

crime have followed the exact same temporal pattern as other countries. In some contexts, Danish problematisations have lagged behind other countries. In other situations, Denmark has taken the lead and introduced problematisations later adopted elsewhere. All specificities aside, I would claim that, overall, the Danish case is a good entry point for understanding how crime was conceived of and responded to in a Western setting throughout the twentieth century. The second reason for focusing on Denmark is that the size of this case allows for a more complete coverage of the relevant sources. Quite a lot has been published about crime in Denmark during the twentieth century, but obviously much less than in, say, Germany, the UK or the USA. Consequently, restricting the analysis to Danish material has allowed me to paint a fuller picture of the twentieth-century problematisations that can be identified. In terms of empirical data, I have analysed a host of documents that problematise crime in various ways. Sources have been selected which allow for a long-term historical analysis so as to be able to analyse possible differences, shifts and links between and across the key problematisations of crime in Denmark in the twentieth century. Specifically, the documents selected for scrutiny comprise mainly theoretical and reflexive texts. Theoretical texts refer to ones that adopt an academic approach to the problem of crime, e.g. criminology or criminal-law material. Reflexive texts are defined as ‘texts that discuss practice and conditions for practice as opposed to case documents, decisions, etc.’ (Andersen 2007: 125). These include, in particular, memoranda, reports, guidelines, etc. that formulate strategies and approaches to solving the crime problems observed. As per Foucault (1992: 12), the theoretical and reflexive texts have been selected according to whether they have a prescriptive dimension, i.e. whether they prescribe certain forms of behaviour. Analytics of power The book’s understanding of power rests on Foucault’s analytics of power.1 Foucault developed his analytics of power in opposition to a particular understanding of power, which he labelled sovereignty or the juridicopolitical conception of power. Essentially, this discourse is characterised by understanding power as negative and repressive, i.e. exercised via prohibition, coercion, sanctions, etc., so that power and freedom appear to be polar opposites: sovereign power is exercised at the expense of freedom. According to Foucault, this concept of power correlates to a feudal social order in which a sovereign ruler enforces his power over his subjects. Feudalism may be a thing of the past, but Foucault asserted that this picture of negative power continues to dominate social theory.2 With his analytics of power, Foucault attempted to overcome this disparity by formulating a significant contribution

10 Foucault, crime and power

to a more contemporary understanding of the exercise of power. He thus observed that, in our era, power is not always – perhaps not even primarily – exercised in the negative form to which the notion of sovereignty refers. To this end, he launched a number of new conceptions of power, each purportedly offering a more adequate view of power. The first main vehicle for this is Discipline and Punish (1977), in which Foucault delivered a comprehensive critique of the sovereignty discourse’s negative understanding of power. As mentioned above, Foucault’s main concern in that particular work was to portray the emergence of a new form of power: to map out how, over time, the sovereign’s negative power, e.g. the power to mercilessly execute offenders, is transformed or replaced/ supplemented by fundamentally different ways of wielding power. According to Foucault, this new form of power (discipline) has a range of characteristics, only a few of which will be highlighted here. Discipline is above all a spatial technology of power, its starting point being the physical separation of individuals. Making the individual the object of attention facilitates intervention – partly because isolating the individual enhances the potential for collating and generating knowledge about them. Spatial isolation is supplemented by temporal separation, designed to control the individual’s activities. Discipline also focuses on a particular element of the individual and his or her activities – namely, the body and its movements. Spatio-temporal differentiation of the individual, augmented by a range of other measures, makes it easier to generate docile and productive bodies. Consequently, discipline, this ‘political technology of the body’, is deployed at the level of detail. For this reason, Foucault characterises it as ‘a micro-physics of power’ and as ‘a political anatomy of detail’ (1977: 26, 139). Ultimately, it is this productive end-goal of discipline that contrasts with the negative form of sovereign power. The organisation and exercise of disciplinary power can be expanded upon via crime-related analyses of punishment’s transformation from public display to disciplining prison, which Foucault uses to illustrate the emergence and spread of discipline. Of central importance here is Foucault’s famous analysis of Jeremy Bentham’s panopticon model. In the panoptic prison, inmates are incarcerated in individual cells, all of which are arranged in a ring around a central surveillance tower. This leads to an asymmetric view: the guard in the tower is able to see into all of the cells and acquire knowledge of the prisoners’ activities, whereas the inmates do not know when they are being observed because the blinds are down on the tower windows. The intended function is clear. The inmate, qua the mere risk of being observed, begins to submit to power, despite the fact that the tower may well be empty or the guard could be looking at other cells. Foucault concludes that ‘the inmates should be caught up in a power situation of which they are themselves the bearers’ (1977: 201). Importantly, the disciplinary power exerted by the panoptic architecture does not reflect an understanding of power according to which it

Introduction 11

is wielded by specific individuals, driven by particular motives. As Foucault says about the panoptically installed power: Power has its principle not so much in a person as in a certain concerted distribution of bodies, surfaces, lights, gazes; in an arrangement whose internal mechanisms produce the relation in which individuals are caught up. The ceremonies, the rituals, the marks by which the sovereign’s surplus power was manifested are useless. There is a machinery that assures dissymmetry, disequilibrium, difference. Consequently, it does not matter who exercises power. [. . .] Similarly, it does not matter what motive animates him. (1977: 202) Another key point about the disciplinary form of power is that the ambition behind this new form of punishment is primarily of a power-economic nature. Quite simply, the assertion is that it is possible to exercise power more effectively, more safely and more cheaply by deploying architectural means to induce self-discipline predicated on the mere possibility of being watched. This power-economic rationale was a contributory factor to the spread of disciplinary mechanisms throughout the social body in the seventeenth and eighteenth centuries (1977: 209 ff.). Panopticism was, Foucault underlines, not limited to prisons. Its alleged efficiency saw it gain ground in programmes designed to improve the management of schools, the army, hospitals, industry, etc. It is in this context that Foucault, as mentioned earlier, went as far as to speak of ‘a disciplinary society’, i.e. a social formation in which the primary form of power is discipline, and which – he suggested in Discipline and Punish – is still dominant today (1977: 216–18). According to Foucault, an increase in the importance assumed by the norm in various social contexts was associated with the diffusion of disciplinary power. The prison system conducts continuous assessments and evaluations, and treats and corrects inmates on the basis of a norm, i.e. based on an idea of what constitutes normality. Thus, disciplinary power is combined and spread along with a normalising power. The result, says Foucault, is that: The judges of normality are present everywhere. We are in the society of the teacher-judge, the doctor-judge, the educator-judge, the ‘social worker’-judge; it is on them that the universal reign of the normative is based; and each individual, wherever he [sic] may find himself, subjects to it his body, his gestures, his behaviour, his aptitudes, his achievements. (1977: 304; see also 2003b: 253) In other words, judges are no longer just members of the judiciary. In the disciplinary/normalising society, a wide range of other experts is involved in

12 Foucault, crime and power

constantly evaluating, correcting and improving individuals so that they fall in line with the norm. In his later work, post-Discipline and Punish, Foucault showed how in the latter half of the eighteenth century, discipline was complemented by a new form of power, which he dubs biopolitics (2003b: 242 ff.; 2008). This form of power revolved, as the name suggests, around life and the living, and was different from both sovereign power and discipline. While the former was based on the power of the sword, with the sovereign demonstrating his superiority and maintaining his existence by executing at will – ultimately, by negating life – biopolitics aims to foster life. Similar to discipline, biopolitics is therefore a productive form of power. But whereas discipline intervenes in relation to the individual body, biopolitics strives to regulate individuals as an aggregated totality, as a population. Crucial to biopolitical regulation are therefore the parameters that map life’s aggregated state (demographic data such as fertility rates, mortality rates, etc.), as well as, in a broad sense, social-medical conditions that may threaten life or public health. According to Foucault, discipline and biopolitics are two poles of an attempt to put life at the centre, which he refers to as biopower. Discipline targets the individual body, biopolitics exercises regulatory control over the population. This supplement to the analysis in Discipline and Punish suggests that his diagnosis of a disciplinary society had perhaps been a tad hasty. Disciplinary power may well have spread throughout the social body, but to focus too narrowly on discipline would be to overshadow the observation of the actions in the last half of the eighteenth century that primed the population for intervention. In the final phase of his writings, Foucault added a new twist to his analytics of power, which is essential to this book’s understanding of power. He introduced a new notion of power, namely that of government or governmentality, which refers at once to a general designation of power and to a particular power modality that gains prominence during the eighteenth century and which ‘has the population as its target, political economy as its major form of knowledge, and apparatuses of security as its essential technical instrument’ (2007: 108). As a general designation of power, government is understood as ‘conduct of conduct’ (‘conduire des conduites’, Gordon 1991: 2). ‘To govern, in this sense’, says Foucault, ‘is to structure the possible field of action of others’ (1982: 221). The French term ‘conduire’ has dual meanings, referring both to leading, managing or leading (others) and to behaving in a particular way. As a form of power, government is therefore a matter of both the way in which power is exercised over others – they are led in a particular direction – and the way the individual comports himself. An important feature of this form of power is that it does away with the power versus freedom dichotomy inherent in the notion of sovereign power. Understood as government, power is constitutively bound to freedom. Power is only power when it structures actions that could have been different.

Introduction 13

According to Foucault, every practice is tied to specific rationalities. In his studies of governmentality in particular, he focused on the rationality dimension (1991: 79). Indeed, the neologism governmentality is a contraction of government and rationality. Rationality should be understood in terms of considerations of how power can and should be exercised, how it is justified, etc. Colin Gordon puts it like this: A rationality of government will thus mean a way or system of thinking about the nature of the practice of government (who can govern; what governing is; what or who is governed), capable of making some form of that activity thinkable and practicable both to its practitioners and to those upon whom it was practised. (1991: 3) Foucault used historical studies to expound his analysis of such governmental rationalities. He showed, first, that over time the governmental form of power became increasingly prominent, especially during the eighteenth century. He described three aspects of this development. First, governmentality focuses on the population. Second, the history of governmentality reflects a trend in which governmental forms of power gradually achieve ‘pre-eminence’ over all other forms of power (sovereignty, discipline, etc.). Third, he talked about a gradual ‘governmentalization of the state’, i.e. a situation in which the state increasingly has to be understood on the basis of governmental techniques (2007: 108, 109). Second, Foucault corrected his thesis of the disciplinary society from Discipline and Punish, pointing out that history should not be read as a general shift from sovereignty to discipline (and later, governmentality): So we should not see things as the replacement of a society of sovereignty by a society of discipline, and then of a society of discipline by a society, say, of government. In fact, we have a triangle: sovereignty, discipline, and governmental management, which has population as its main target and apparatuses of security as its essential mechanism. (2007: 107–8) There is no tension between this shift and the first of the above-mentioned points. Even though Foucault argued that an analysis of the exercise of power must include sovereignty, discipline and governmentality, he was also able to argue that in any given period one of these forms of power will nevertheless be more prominent than the others. This shift away from the diagnosis of the disciplinary society is further reflected in Foucault’s 1978–9 lectures, The Birth of Biopolitics, in which he explicitly addressed the field of crime (2008: 239–65). Specifically, Foucault discussed a series of analyses from the late 1960s that put forward

14 Foucault, crime and power

a neo-liberal approach to crime. Of key importance to Foucault is the American economist Gary S. Becker’s discussion of ‘Crime and Punishment: An Economic Approach’ (1968). Becker’s proposal is to apply the notion of the homo œconomicus to the field of crime, meaning that criminal activity is seen as a form of action, where the individual is calculating pros (benefits of the crime) and cons (the risk of penalty) of engaging in criminal behaviour. Introducing this kind of economic analysis has several important consequences, according to Foucault. First, it annuls the idea that the criminal individual should be a particular type of individual, in need of particular kinds of responses (an idea that has figured importantly in many problematisations of crime, as Chapter 1 will display). Second, and related to this, it radically calls into question the need for disciplinary measures, which are replaced instead with economic considerations of how to use punishment as a means ‘to combat crime in an optimal fashion’ by governing individuals through their calculative practices – in the specific sense that the aim is not to eradicate crime, but rather to arrive at the optimal level of crime (Becker 1968: 172). According to Foucault: what appears on the horizon of this kind of analysis is not at all the ideal or project of an exhaustively disciplinary society, in which the legal network hemming in individuals is taken over and extended internally by, let’s say, normative mechanisms. [. . .] On the horizon of this analysis we see instead the image, idea, or theme-program of a society in which there is an optimization of systems of difference, in which the field is left open to fluctuating practices, in which minority individuals and practices are tolerated, in which action is brought to bear on the rules of the game rather than on the players, and finally in which there is an environmental type of intervention instead of the internal subjugation of individuals. (2008: 259–60) My point here is not to delve into the specifics of Foucault’s analysis of Becker’s suggestions for a neoliberal government of crime, but simply to stress once again that, while discipline obviously matters to Foucault, it is far from his only entry into the analysis of crime, and hence also will not be the only notion informing this study. A final key point regarding Foucault’s analytics of power concerns subjectification, i.e. the ways in which individuals are constructed as specific subjects (e.g. 1982: 212). The concept of the subject has a dual meaning. On the one hand, one can be subject/subjugated to the control of others. On the other hand, one can subordinate oneself. While Foucault’s early writings focused on the first variant (subjectification), his later writings attributed increasing weight to the second (subjection), as well as to the interrelationships between the two (e.g. 2011: 9). In both cases, this represents a clash with the

Introduction 15

idea of the subject having an ahistorical, autonomous core identity. Foucault replaced this with studies of how, on the contrary, new forms of subjectivity have been produced throughout history. In this context too, power is productive/creative by nature. The interesting thing about this part of Foucault’s analytics of power is that it opens up the idea of power being exercised through the individual, via the way in which the individual is created as a subject: This form of power applies itself to immediate everyday life which categorizes the individual, marks him [sic] by his own individuality, attaches him to his own identity, imposes a law of truth on him which he must recognize and which others have to recognize in him. (1982: 212) As the quote indicates, this is not just a matter of power applying in the actual operation by which the individual is created as a subject. It is also evident in the power effects to which subjectification gives rise. This is illustrated by Foucault’s analysis of the rise of the criminal as a subject. Foucault made a point of describing how the prison is organised so that it is able to adapt its corrective operations to the individual nature of the inmate. In other words, in the first half of the nineteenth century the enforcement of penalties became more individual, both through disciplinary supervision and as a result of record-keeping and the amassing of knowledge aimed at improving the individual inmate. This was no innocent affair, according to Foucault. What happened was that the subject sentenced by the court was a different subject than the one produced by the prison and its techniques. Where the courts and judicial system entrust offenders to the prison, the latter was interested neither in the offence per se nor the offender. Instead, the prison focused on the delinquent, who ‘is to be distinguished from the offender by the fact that it is not so much his act as his life that is relevant in characterizing him’ (1977: 251). Thus, the prison creates a new subject. Improving this individual requires insight into his or her life, inclinations, etc., all of which – as per the prison’s rationality – may require intervention if the criminal core is to be affected. Consequently, power does not just create the subject here and now, but also has effects on the way in which he or she is subsequently observed and on which corrective measures will be taken. Viewed as a matter of government, subjectification is about acting upon people’s future actions. For example, the criminal is conditioned in terms of how they should act and how others should act in relation to him or her. This touches again on the relationship between subjectification and subjection. Foucault was well aware that a one-sided look at the subject as subordinate to the power and dominance of others overlooks the insight that individuals can subject themselves – in Foucault’s words, create and process themselves via self-techniques.3 A subject is therefore not just something one

16 Foucault, crime and power

is to others. It is also something one creates oneself as. Foucault argued that it is precisely in the link between the two that the governmental power becomes visible: ‘This encounter between the technologies of domination of others and those of the self I call “governmentality”’ (1997b: 225). The idea is simply that governmental power can be exercised by encouraging individuals to engage in active self-relations, i.e. by triggering commitment to their own self-techniques. To summarise this part of Foucault’s analytic project, we can affirm that the aim is to entrench an analytical perspective that encapsulates forms of power that do not merely follow the sovereignty discourse’s negative, repressive model. Power may well be exercised repressively in some contexts, but only observing this kind of power means blinding oneself to the more refined and subtle forms that result from subjectification or architectural devices. What the concepts of discipline and biopolitics have in common, therefore, is that they characterise productive forms of power, i.e. forms of power that do not negate, but create and foster. And governmentality related to apparatuses of security aims to facilitate certain forms of behaviour by operating through freedom (see below). Moreover, none of these forms of power are conceived of as a causal relation between actors where one part possesses power and the other does not. On the contrary, as Foucault argued in a key passage, it is about recognising that: Power relations are both intentional and nonsubjective. If in fact they are intelligible, this is not because they are the effect of another instance that ‘explains’ them, but rather because they are imbued, through and through, with calculation: there is no power that is exercised without a series of aims and objectives. But this does not mean that it results from the choice or decision of an individual subject; let us not look for the headquarters that presides over its rationality; neither the caste which governs, nor the groups which control the state apparatus, nor those who make the most important economic decisions direct the entire network of power that functions in a society (and makes it function). (1990: 94–5, italics in the original) It is also worth adding that neither discipline, biopolitics nor governmentality are characterised by the conflict between power and freedom implied in the notion of sovereignty. Foucault underlined that power can only be exercised in relation to actions that could have been different. In fact, power is exercised in multiple contexts through freedom, namely through the individual’s freedom of choice, through the construction of free subjects who base their actions on a weighing up of pros and cons (Nikolas Rose’s studies of advanced liberal rule are illustrative of this, see e.g. Rose 1999). This concludes the description of the basic elements of the analytics of power employed in this book. The study refrains from an understanding of power that a priori analyses power in its causal, subjectivist and repressive

Introduction 17

categories. Rather, the aim is to investigate how solutions to the problem of crime, as implied by the various problematisations of the phenomenon, prescribe how that power is exercised – with a particular view to subjectification. Even though the analysis is open to various forms of power (sovereignty, discipline, etc.), the starting point for understanding power is based on Foucault’s general understanding of power as the conduct of conduct. In brief, the book is a crime-specific equivalent of Foucault’s overall project: ‘My problem is to know how men govern (themselves and others) by means of the production of truth’ (1991: 76) – in casu, with the help of truth production related to twentieth-century Danish problematisations of crime. Structure of the book The book starts in Chapter 1 with a prelude to the actual period of study, the twentieth century. Since the prevalent problematisations of crime at the start of the twentieth century arose in response to a (metaphysical) understanding of offences and the means of combating them, as expressed in Denmark, e.g. in the Criminal Code of 1866, the chapter serves as a background for understanding subsequent developments. Its special status is underlined by the fact that, in contrast to the later chapters, which rely almost exclusively on Danish material, it incorporates international debates from the late nineteenth century. Criminology emerged from these debates as a positivist science of the criminal individual. At the turn of the twentieth century, the international criminological debates reached Denmark. Chapter 2 covers these developments in Denmark during the period 1900 to 1930.4 It describes how during this period crime was regarded as a question of abnormal and degenerate individuals from whom society had to protect itself through indefinite internment and treatment, as well as through sterilisation and eugenics programmes. The idea of treatment is analysed in greater detail in Chapter 3, where the discussion mainly deals with the psychiatric view of crime that took hold in Denmark during approximately 1930–1970. The chapter also shows that in the 1960s an increasingly significant critique emerged of the treatment ideal, which then more or less collapsed in the early 1970s. While the first chapters follow a broadly chronological account – Chapter 1: 1866–1900; Chapter 2: 1900–1930; Chapter 3: 1930–1970 – Chapter 4 breaks with this pattern. Thus, Chapters 4, 5 and 6 are largely concerned with parallel movements (although Chapter 6 primarily deals with the period after 1990). These chapters show how, since the early 1970s, the problem of crime has followed different lines, all of which can be interpreted as different responses to the crisis engendered by the treatment ideal. Despite their differences, these lines are characterised by similarities that make it reasonable to consider the shifts presented in Chapters 4–6 as a reflection of a general movement that envisages regulating the problem of

18 Foucault, crime and power

crime by means of what Nikolas Rose describes as advanced liberal governance (1999). Here the focus is on tackling the problem by promoting the active and responsible individual and communities. The theme of Chapter 4 is sanctions, namely the critique of imprisonment (partially related to the critique of treatment), which led to a demand for alternatives to incarceration. The chapter shows that these alternatives – particularly community service and victim/offender conferences – reflect a governmental rationality according to which the community was increasingly deployed as the key to controlling the crime problem. Chapter 5 is about crime prevention, especially the idea that it is possible to control crime through the design of urban space and by promoting communities. Crimeprevention efforts revolve around the potential victim’s actions – above all, where they live and the nature and timing of their activities. The final empirical chapter, Chapter 6, discusses a range of more recent perceptions of crime that, in various ways, make the active, responsible individual the focus of governmental measures. This is done through the recommendation of specific empowerment technologies predicated on individuals being made capable of taking care of themselves. This includes new approaches to treatment, the use of community policing and using contracts to keep criminals under control. The chapter also discusses how new recommendations revolve around a sovereign exercise of power. The results of the analysis are summarised in the Conclusion.

Chapter 1

The birth of criminology

Free will As a prelude to the study of problematisations of crime in the twentieth century, this chapter considers the background to the emergence of a scientific perspective on crime. The problematisations that made headway in Denmark in the early twentieth century emerged as a critical response to the concept of crime that revolved around the idea of free will. Hitherto, in brief, the argument in this conceptual universe had been that criminal acts (indeed all actions) are, as a rule, attributable to free will. This, in turn, gave rise to so-called deterrence theories, which posited that potential offenders would refrain from transgressing due to the threat of punishment and its actual enforcement. While deterrence had a general preventive aim, the imposition of the actual punishment was designed to reform the individual criminal. In this chapter, I first discuss how the notion of free will was adopted in Danish approaches to crime. The emphasis will be on the Criminal Code of 1866. Next, I examine how a range of scholarly developments in the late nineteenth century challenged the idea of free will. That discussion will centre on Cesare Lombroso and his positivist school of criminology, the French sociological school (Émile Durkheim and Gabriel Tarde) as well as the German school, whose main representative was Franz von Liszt. Common to these three schools is their critical attitude towards conceptions of crime that pivot around the notion of free will and their attempt instead to foreground ideas about social and/or biological factors in explanations of, and hence also penal responses to, crime. The chapter ends with some reflections on the analytical alternatives to free will and the forms of power to which they gave rise, as well as the continuities and changes involved in the developments outlined in the chapter. But let me begin with the Danish Criminal Code of 1866, which provides a neat summation of the prevailing conception of crime at the time. The basic tone of the 1866 Code was preventive. This is reflected, for example, in the fact that the emphasis in sentencing was on the ‘objective’ aspects of the criminal deed, such as the level of danger involved, the gravity of the offence,

20 Foucault, crime and power

the importance of any object that was damaged, etc. (Criminal Code of 1866: Section 57). The Code also adopted a partially individualised view of crime, since the sentencing was also expected to take into account the steadfastness ‘in the perpetrator’s will, the reasons for the crime, his upbringing, age and previous conduct, his particular relationship to the aggrieved party and his behaviour subsequent to the criminal act’ (Criminal Code of 1866: Section 57).1 However, the inclusion of such considerations does not obscure the fact that ‘the objective gravity of the crime and, through this, the general preventive aims were to be the defining characteristics of criminal sentencing’ as Iuul observes (1952: 46). The question of free will was particularly evident in the sanity provisions, which established equivalence between the exercise of free will and sanity. A series of exceptions were also noted. For example, children under 10 years of age were exempt from prosecution (the age of criminal responsibility), although they could be subjected to rehabilitation and precautionary measures. The reasoning was that children aged under 10 were not thought to be capable of recognising the criminal nature of their actions (see the Criminal Code of 1866: Section 36). The same logic and exemption from prosecution were extended to adults who lacked the same ability, namely: individuals who are deemed insane or whose faculties are either so poorly developed or so weakened and disturbed that they cannot be assumed to be aware that a deed constitutes a crime or who, at the time of the deed, were not in control of their faculties. (Criminal Code of 1866: Section 38) Precautionary measures were an option for these individuals, usually through confinement in a psychiatric institution (see the Criminal Code of 1866: Section 38; see also Adserballe 2000: 24). By contrast, individuals who were not obviously deranged or disturbed (i.e. the sane) were liable to incur punishment, although those deemed not to be exercising completely free will were to be punished less harshly.2 Finally, a link was established between the idea of free will and the factors believed to influence a person to make immoral choices in the ‘either/or’ moment leading up to an offence (Jürgensen 1866: 135). So in much the same way as the general preventive perspective posited that the threat of punishment could influence an individual’s weighing up of the pros and cons of committing a criminal offence, it was claimed that, by regulating other factors, it would be possible to steer free will, and therefore choice, in the direction of what was best for society. Indeed, a central and declared purpose of punishment was to ‘rehabilitate the criminal. It follows that the punishments used must be of a type that really could raise the individual concerned to a higher degree of morality’ (Jürgensen 1866: 5, italics in the original; see also 9, 22). Through rehabilitation, the criminal would thus be brought back to the path of the

The birth of criminology 21

law-abiding citizen. In particular, this could be achieved through educational measures, as education was thought to be the key to the individual’s choice (see Jürgensen 1866: 149). In short, to ensure that an individual would, in future, choose the moral and socially responsible option when faced with a choice, moral – perhaps religious – education was necessary. The urge to rehabilitate was also the basis for both of the types of institution that the 1866 Code established as the setting for penal servitude: tugthus (prisons with hard labour) and forbedringshus (houses of correction). There were many differences between the two but, in general, the former was for criminals whom it was thought would be difficult to rehabilitate.3 Here, unlike in a house of correction, individual inmates were held in complete isolation. By contrast, houses of correction were for convicts with better prospects of rehabilitation. Offenders could be sentenced to between two years and life in prison with hard labour, whereas sentences to a house of correction ranged from eight months to six years. The 1866 Code also allowed for simple imprisonment (from two days to two years), prison on a standard inmate diet (from two days to six months), prison on bread and water (from two to 30 days) and, in rare cases, what was known as state prison (from six months to ten years or life). In the first half of the nineteenth century, long debates considered the merits of a general reform of the existing penal institutions, a central theme of which was the moral improvement of the criminal. Two US Americaninspired penal systems attracted particular attention: the Auburn and Pennsylvania models. Under the Auburn model, as practised in the Auburn Prison in New York from 1823, prisoners endured collective hard labour during the day and were isolated in solitary cells at night. Communication between prisoners was strictly prohibited and punishable by flogging. In the Pennsylvania system, the isolation of the individual prisoners was even more absolute, as they worked in their cells and were kept there day and night. Exercise in the prison yard was allowed, but only in isolation. In contrast to the Auburn model, the emphasis was on contact with selected individuals, e.g. the prison chaplain, who, it was believed, could effect a moral improvement of the inmates. This was to counteract the allegedly malign influence of their fellow inmates, which was part of the reason for the isolation and ban on communication. The governmental rationale of both models was that isolation would discipline the prisoner, and provide him with an opportunity to reflect on his misdeed and improve his character. In the Pennsylvania system, this was augmented by edifying conversations with individuals considered to be moral role models (Smith 2003: 86 ff.). In both the Auburn and Pennsylvania models, the starting point for the rehabilitation was, therefore, a spatial technology of power that separated the individual inmates: a technology of power designed to isolate the prisoner and encourage self-technological effects. It was, in short, a government of the prisoner’s self-government.

22 Foucault, crime and power

These models also made their mark in Denmark. A prison commission, set up in 1840 ‘to realise the purpose that imprisonment would not act solely as a deterrent, but would also cater for the moral rehabilitation of the criminal’ (quoted in Smith 2003: 129), discussed whether to implement one of these systems or the other. King Christian VIII opted for both models – two Auburn institutions (prisons) and two slightly modified Pennsylvania institutions (houses of correction) (Smith 2003: 141 ff.). The Vridsløselille house of correction, which opened in 1859, was an example of a practical realisation of the Pennsylvania system’s governmental rationality in Denmark. Given that different prisoners were believed to be in need of different types of rehabilitation, individualising techniques were to be deployed right from the start in order to generate knowledge about each individual inmate. Every prisoner’s personality and development were to be evaluated and recorded. As well as a short biography, the documentation for each prisoner noted their personality and moral constitution, and thus served as the basis for the individual programme (Smith 2003: 188). In this perspective, the spatial technology of power supported the individualisation of the inmate, who was identified and evaluated as a criminal subject with specific rehabilitation needs; and discipline and norms served as, respectively, a technique and a focal point for the rehabilitation, the normalisation.4 As mentioned above, the central aim of moral rehabilitation was to put the individual inmate back on the right track. The main source of this guidance was to be the prison chaplain, who should act as an intervening figure and guardian of normality. The chaplain’s duties included holding religious services in the prison, individual counselling and interviews with prisoners. Smith (2003: 249) describes this as the application of religious technologies of the self, where religion served as a conduit for the individual prisoner’s work on their own morals. Contemporary reports by chaplains document this individualising approach, which was prevalent in debates about imprisonment. Pastor William Munck, who served as chaplain at the Christianshavn penal institution from 1869, wrote that the rehabilitation work ‘must be done through conversations in private with the individual, and by achieving in-depth knowledge of each individual’ (1922: 129). The chaplain in Viborg, E.G.A. Hindberg, noted that the pastoral role required chaplains to ‘learn more and more to tailor their care to the various individualities’ (1865: 133). The promotion of the idea of the house of correction illustrates the tension between the Criminal Code’s focus on general prevention and the individualising techniques prescribed in the actual enforcement of sentences. On the one hand, a general discourse of free will prevailed, while, on the other, the work of the house of correction was supposed to focus on the individual inmate’s moral constitution. Amassing knowledge about the individual concerned allowed their character to be corrected by means of moral-religious education and instruction in work on the self. Even though this entailed fluctuation between what are usually described as general and

The birth of criminology 23

special preventive considerations, the intersection was in the attempt – via rehabilitative education – to inculcate into the free will the moral strength necessary in a virtuous social order (see also Aude-Hansen 1952a: 60–1; Smith 2003: 138–9). The governmental rationality underpinning this programme can therefore be expressed by the following formula: Those in possession of free will should be governed by regulating the calculation on which they based their choices. Those not in possession of free will should be governed by endowing the exercise of will with a moral habitus. How might one make sense of these developments in terms of power modalities? As David Garland (1997b: 28–9) has pointed out, in the midnineteenth century, the proposals for solving the problem of crime constituted a general governmental endeavour which was, in the final analysis, about regulating the population as effectively as possible. The problem of crime, and solutions to it, were not considered separate or distinct from general governance. That is, criminal behaviour did not require explanatory models that differed from those used to explain other forms of behaviour. On the contrary, criminal law was supposed to operate on the basis of the calculating citizen – the same basis used to govern the market. The ideas of free will and education in the ways of a moral social order were, quite simply, the foundation for general political rule, including how offenders were dealt with. Challenging the metaphysics of will: the emergence of the criminal individual The belief in the metaphysics of free will and the attempts to build a penal system around it were dealt significant blows at the end of the nineteenth century. At this time, a number of theoretical developments led to the emergence of what Garland (1997b) refers to as a ‘Lombrosian project’, namely a specifically natural-science view of the problem of crime, which was closely associated with the work of the Italian, Cesare Lombroso. I shall outline the basic features of some of the currents within this project below. Since they largely originated in debates outside Denmark, the Danish situation and the discussions that followed in the wake of the Criminal Code of 1866 will be left aside for the time being. The discussion will revolve around three currents that differed in several respects, but converged in a critique of the idea of free will. These currents, or schools of thought, are the Italian positivist school, started by Lombroso, the primarily French sociological school (Émile Durkheim, Gabriel Tarde) and the German school, associated, in particular, with Franz von Liszt. Lombroso’s criminal-anthropological programme constituted the most strident challenge to previous understandings of crime.5 Inspired by a palette of contemporaneous scientific disciplines, theories and methods – anthropology, phrenology, degeneration theory, Darwinian evolutionary theory, psychology, etc. – he introduced a new perspective on the understanding

24 Foucault, crime and power

of criminal behaviour: an anatomically based criminal psychology (Lombroso 1894a: xxiii–xxiv). Based on empirical studies of several thousand criminals, incorporating a wide range of parameters (physiognomy, hair colour, tattoos, handwriting, anatomy, etc.), Lombroso concluded that it was possible to distinguish a number of characteristics specific to criminal individuals. He argued that, in their physiological, psychological and anatomical constitution, these individuals were different from ‘normal’ people. From this, he developed the idea of the ‘criminal type’ or born criminal, the concept that made Lombroso’s name. According to Lombroso, the criminal type, homo delinquens, was characterised by his (or, in the case of criminal women, her) atavism, his (or her) similarity to inferior people. He therefore observed an equivalence between criminals and what he defined as the physical and spiritual properties of wild people, e.g. a hairy forehead, thick, curly hair, big ears, cruelty, recklessness, etc. Lombroso also linked criminal behaviour with epilepsy, moral insanity and degeneration (for a summary, see 1894a: 534 ff.; 1902: 326–7; 2006). All this challenged the idea of free will, which Lombroso discarded as metaphysical speculation (2006: 220). In contrast, he promoted a new subject construction by endowing certain individuals with criminal tendencies, in the light of their physiological, psychological and anatomical characteristics.6 Using Garland’s (1997b) distinction, it can be said that the governmental project was founded on a biopolitical regulation, in which individuals – criminal or not – were governed on the basis of their free will (irrespective of whether this could be affected directly or first had to be modulated through moral and religious education) and in which distinctions were not, therefore, made between types of individuals.7 In Foucault’s terms, this governmental project assumed that ‘[h]omo penalis, the man who can legally be punished, the man exposed to the law and who can be punished by the law is strictly speaking a homo œconomicus’ (2008: 249, italics in the original). The Lombrosian project, on the other hand, identified an entirely new type of person, one who could be studied in his or her peculiarity, and who was described in a pathological register as a social abnormality.8 One central corollary of Lombroso’s project was, therefore, that it introduced disorder into the conceptual logic that had previously formed the basis for work on policy affecting criminals: the triangle the law–the crime–the punishment, which, by not focusing clearly on the relationship between the crime and the criminal, had largely ignored the latter (Pasquino 1991: 237). It should be noted that Lombroso drew a distinction between different types of criminal, distinguishing (especially with regard to female criminals) between e.g. habitual criminals, occasional criminals and criminals whose misdeeds were crimes of passion (Kurella 1911: 62 ff.). Further, Lombroso did not want to speculate as to the numbers of the different types of habitual criminal. Mapping this would necessarily be an empirical matter: ‘Every day, some new species of criminal, some new type of criminal, is

The birth of criminology 25

discovered’ (1894b: 138), among whose number he also counted vagabonds and informers. It should also be noted that, although Lombroso’s own writings – especially his early works – suggested that he was only interested in the criminal’s physiological, psychological and anatomical constitution, these were, in fact, only aspects of his overall programme. Anything that could empirically be shown to cause crime was, in principle, relevant to Lombroso. For example, he gradually incorporated more pronounced spatial explanatory factors, which complemented the otherwise highly prominent subjectification focus. Inspired by Enrico Ferri, whose studies included links between crime and temperature, his writings also offered analyses of climatic and geological processes with reference to crime (Lombroso 1902: 1 ff.; Kurella 1911: 159).9 Ferri was one of the two best-known supporters and developers of Lombroso’s programme. The other was Raffaele Garofalo, who gave the discipline the name of ‘criminology’ in 1885 (Garofalo 1968). While Garofalo mainly expounded the positivist school in terms of criminal law, Ferri’s contribution was to crime policy (Hauge 1996: 185 ff.). While Ferri subscribed to Lombroso’s work, he stressed more strongly the difference between the habitual criminal and the occasional criminal, and he also, increasingly, concentrated on the social causes of crime – both of which were extremely important for the measures that he recommended. Ferri argued that policy initiatives had to take a dual form. First, social conditions had to be improved, which would reduce periodic fluctuations in crime – specifically those committed by occasional criminals who, it was claimed, were often motivated by poor social and economic conditions. Second, depending on how dangerous they were deemed to be, either a permanent or temporary neutralisation of the criminal should be initiated (1900: 61–2). Ferri was sceptical of both punishment and education, arguing that neither would be able to guarantee the transformation of criminal individuals into good citizens. On the contrary, he thought that prison sentences, in particular, had directly negative consequences, namely as a cause of recidivism (1900: 108 ff.). By the same token, punishment was only to play a secondary role in what was Ferri’s primary concern: the ‘social defence’ against crime, which was based on the idea that society has the right to defend itself against allegedly antisocial individuals who pose a danger to its continued existence.10 Crucial here was that this defence was preventive in nature – that it (as opposed to reactive-repressive punishment) was deployed to address the factors that caused the crime, or that it neutralised or eliminated the criminal individuals, in order to solve the problem of crime. Ferri established a three-pronged system for improved social defence. The system was based on the concept of ‘penal substitutes’, which held that there were alternatives to traditional imprisonment that were better able to guarantee the defence of the social sphere (1900: 112). The first stage of the system consisted of a neutralisation period: indeterminate sentences for

26 Foucault, crime and power

incorrigible criminals, if necessary for up to life (1900: 207 ff.).11 Ferri proposed that, during the neutralisation stage, physio-psychological studies should be conducted of the individual inmates. Neutralisation was, therefore, not exclusively intended to contain criminals, but was to be complemented by ongoing studies of the inmates’ individuality and the level of danger they posed. He argued, by extension, that the prisoner could be granted parole if the physio-psychological analysis so warranted (1900: 216). As the second part of the defence programme, Ferri envisaged compensation to the victim of the criminal offence, e.g. granting parole in return for the prisoner paying some form of damages, or – in less serious cases – the perpetrator avoiding imprisonment completely by paying damages (1900: 217 ff.). The third part of Ferri’s system was related to the first. It stated that society’s defensive measures should reflect the criminals’ diversity. Essentially, this was a challenge to the idea that everyone is equal before the law. Rather, the law and the sanctions imposed by the state were to be based on the specific individual’s character – and therefore the danger he posed, his potential for reform, etc. In principle, therefore, Ferri endorsed the idea that every prisoner should be sanctioned on the basis of a physiological and psychological study of his individual character and the conditions that induced him to commit crime. However, he also recognised that, in practice, this was an impossible task. He disparaged the prisons of the day, which – like those in Denmark – were based on isolation and moral guidance from a prison chaplain or a similar figure (1900: 226–7). Instead, Ferri recommended a system of classification that took into account the diversity of criminals and adapted the sanctions accordingly (1900: 227). He therefore advocated the establishment of asylums for the criminally insane (one type for the insane who had committed serious offences, such as murder, rape, etc., and another type for those guilty of less severe offences). For born criminals, he saw two options: indefinite isolation or lifelong deportation.12 Common to these proposals was that they used spatial techniques and radical exclusion from society to solve the problem of crime. Since their theories were based on a classification system, both Lombroso and Ferri retained the possibility of treatment for some types of criminals – and Lombroso even talked about criminal therapy. Born criminals may well have been thought to have little chance of being reformed, which is why Lombroso advocated internment in asylums for the incorrigible, but he did not exclude the possibility of exerting influence on young offenders. Lombroso also saw opportunities for rehabilitation through channelling criminal inclinations into work: the bloodthirsty could become a butcher or join the military (‘which, of course, is sometimes little more than an official form of butchery’), the athletic criminal could be employed in a circus, etc. (1894b: 379). The other means of rehabilitation stressed by Lombroso were the US American probation system and good moral families (1894b: 383 ff.). In other words, it was claimed that, to a certain extent, it was possible to exert influence on the criminal and suppress his disposition towards crime. This, of

The birth of criminology 27

course, did not preclude particular circumstances suddenly (again) causing the individual concerned to fall foul of the law (see Kirchenheim 1894: viii). The contribution made by the positivist school did not go unchallenged. In particular, two critical positions attracted attention: the French sociological school and the German school. Like the positivist school, followers of the sociological school, including Gabriel Tarde and Émile Durkheim, attacked the metaphysics of the will. However, they did not accept the assumption that crime largely emanated from a specific criminal disposition in the individual. On the contrary, this perspective stressed that crime had to be studied as a fundamentally social phenomenon, a point of view articulated by Durkheim, who argued that crime is socially normal (1982: 97 ff.). This was also stressed by Tarde through his imitation theory (which, incidentally, was the subject of a heated debate with Durkheim). Tarde developed an entire sociology that revolved around the notion of imitation. Indeed, Tarde argued, ‘[s]ociety is imitation and imitation is a kind of somnambulism’ or (hypnotic) suggestion (1962: 87, italics in the original). In line with this notion, Tarde declared that crime is a social product; it does not arise from the individual’s anatomical constitution, but from the imitation of other criminal acts (Tarde 1968; see also Beirne 1987). To illustrate his thesis, Tarde mentioned the following specific episode that demonstrated the imitative effects of a young girl killing the neighbouring family’s child: In 1825, in Paris, Henriette Cornier cruelly put to death a child of which she had the care; not long afterwards, other children’s nurses yielded, for no other reason than this, to an irresistible desire to cut the throats of their employers’ children. (1968: 340; the Cornier case is also discussed in Foucault 2003a: 110 ff.; 2014: 212 ff.; see also Borch 2005) One area of particular interest to Tarde was the problem of the crimes of crowds, a prominent theme in the late nineteenth century. Tarde was one of the foremost figures in crowd psychology, and he conducted several analyses of rampages (e.g. Tarde 1892; 1893; see also Borch 2012: Ch. 2). Importantly, both Tarde’s emphasis on imitation as a key social dynamic and his attention to crowd eruptions undermined what he referred to as ‘the illusion of free will’ (1968: 194). Yet, aside from the crowd-psychology aspect of Tarde’s work, Durkheim and Tarde had little resonance in the Danish crime debate. By contrast, the German school would prove extremely influential. The German school mediated between the positivist and sociological schools and was epitomised by Franz von Liszt. The Belgian Adolphe Prins – who, like Ferri, argued strongly for the defence of the social – and the Dutchman Gerard Anton van Hamel, were other, less influential figures. Liszt formulated his programme almost simultaneously with the positivist school. His seminal article ‘Der Zweckgedanke im Strafrecht’ (‘The Idea of Purpose

28 Foucault, crime and power

in Criminal Law’) was published in 1882, six years after the first edition of Lombroso’s work on the criminal individual. In it, Liszt noted that Lombroso and others had started a critical movement, to which he attached himself and which led away from classical criminal law – for example, he shared the critical attitude towards metaphysics (1905b: 130 ff., 134; 1905c: 297). An even more pronounced relationship is found in the contrast between the interests of society and the criminal individual. Like the criminal anthropologists, Liszt shifted the perspective from the abstract deed to the specific perpetrator. Or rather, he stressed that every crime requires a criminal, and that punishment should be meted out in relation to the person, rather than their crime (1905b: 175). Liszt distinguished between three types of criminal, against which society had to protect itself, and advocated that the measures to deal with crime be adapted for each group. The first group comprised the so-called incorrigibles, including beggars, vagrants, and the spiritually and physically degenerate – in short, ‘the army of people fundamentally opposed to the social order’ (1905b: 167) – who, it was claimed, were characterised by frequent recidivism. For this group of criminal individuals, Liszt saw incarceration for life, or for an indefinite period, as appropriate measures to protect society (1905b: 169). The aim underpinning both of these responses was to render harmless elements that inflicted damage on society. The second group consisted of criminals who could still be saved from a life of crime. The solution for them was a spell in a house of correction, lasting between one and five years. Unlike incarceration for life or an indefinite period – from which release would be a rare occurrence, although not impossible in principle – the correction centre offered a real chance of release. A board of supervisors was to make annual recommendations about setting free prisoners who seemed to have reformed. The third and final group in Liszt’s taxonomy was made up of occasional criminals who did not actually display a need for rehabilitation. For this group, Liszt suggested that the threat of punishment would act as a deterrent (1905b: 172). This deterrence theory marked a politico-technical rationale, which was parallel to the general preventive measures expressed in the Danish Criminal Code of 1866 (see also Hauge 1996: 211). In short, Liszt operated with a very simple categorisation into incorrigible, reformable and occasional criminals who were to be rendered harmless, reformed and deterred, respectively. According to Liszt, this outlined the thinking behind the purpose of punishment. However, this system was only part of a larger programme for penal policy (Kriminalpolitik) that, according to Liszt, had to be embodied within an overall penal science. He defined penal policy as ‘the systematic embodiment of the principles – based on the scientific study of the causes of crime and the effects of punishment – according to which the state, by means of punishment and how it is organised, combats crime’ (1905e: 292, italics in the original).13 Liszt’s definition was clearly inspired by the positivist school’s etiological approach to the question of crime. He also

The birth of criminology 29

acknowledged that his own project owed something to Lombroso’s, since penal policy was to be based on insights from, for example, criminal anthropology. More clearly than Lombroso, however, Liszt stressed the need for statistical-sociological knowledge (1905e: 291). The combination of positivist-school thinking and sociological studies was characteristic of Liszt and was reflected, in particular, in his general determination of the causes of crime: ‘The crime is the product of the specific nature of the perpetrator at the moment of the act and the environment in which he finds himself’ (1905c: 290). So, in addition to the individual factor in crime (Lombroso’s primary object of study), Liszt identified a temporal dimension – ‘the moment’ (although he did not analyse this in greater detail) – and a general environmental, contextual dimension, which included cosmic, social and, in particular, economic factors (1905c: 290–1). But contra Lombroso, he attributed greater importance to the social/ societal dimension than the character of the criminal individual (1905c: 292).14 This, in turn, led Liszt to lower his expectations of the effectiveness of penal responses. Since criminal behaviour was largely attributed to social conditions, punishment was just one way of combating crime, and not the most important one. Instead, the main effort should focus on regulating the social causes of crime (1905c: 294–5). In practice, according to Liszt, social policy constituted the most effective penal policy instrument (1905a: 246). Consequently, Liszt widened the field for intervention considerably. Although he worked with a precise definition of crime policy, his programme can ultimately be seen as a form of de-differentiation of penal policy, as the distinction between social policy and penal policy was abolished tendentially (see also Wetzell 2000: 36–7). Aside from being channelled through his writings, Liszt’s ideas also found an institutional voice. Thus, in 1889, an initiative by Liszt, Prins and Hamel led to the formation of L’Union Internationale de Droit Pénal (the International Union of Penal Law). The purpose of this international association was to work towards the inclusion of a number of the points identified by Liszt in European legislation. For example, the Union argued for taking seriously both anthropological and sociological studies; working with a distinction between occasional criminals and habitual criminals; seeing punishment as only one means of fighting crime; and rendering incorrigible habitual criminals harmless. As I shall come back to in Chapter 2, the Union’s programme attracted considerable attention in Denmark and was immediately translated into Danish (International kriminalistisk Forening 1889). Continuity and change It is time to sum up the developments outlined in this chapter. Three factors should be highlighted. First, there was agreement in late-nineteenthcentury scholarly discussions on the negative delineation in relation to

30 Foucault, crime and power

metaphysical categories, which were replaced by a natural-science ideal of a, in the words of Liszt, ‘scientifically exact observation’ of the empirically verifiable causes of crime (1905c: 290). In practice, these were realised through the assimilation of insights and methods from disciplines such as biology and psychology. Second, this etiologic endeavour entailed a shift in perspective from the offence to the offender – the new subjectification category of the era. The study of criminal individuals would serve to identify the causes of crime. Mapping these causes would also identify areas in which crime policy needed to intervene, be it the criminal himself, or in social or environmental factors. The identification of the problem and the projected form of subjectification (free will/deed versus criminal dispositions/individual) were not only identical, but also formed the basis for solving the problem of crime (general prevention versus special forms of prevention). Third, the invention of the criminal individual also brought the concept of protecting society to the fore. The semantic emergence of the criminal individual was therefore inserted into the society–individual dualism of the 1800s as a negative figure. Where offences were previously combated with reference to upholding the law – or even earlier, in defence of the sovereign/monarch/God – it was now about protecting society from criminal elements, who were considered a threat to the social order (Pasquino 1991: 241). In other words, power was to be exercised in the name of the social. The two poles – of society and the social on the one hand, and antisocial criminals on the other – were reinforced by a pathologising conceptualisation of criminal individuals, including the categorisation of criminals as degenerate, atavistic creatures. Previously, mentally ill offenders had been discussed without this undermining the basic concept of free will (Algreen-Ussing et al. 1864: 49 – see, for example, the description of the insane in the Criminal Code of 1866). The positivist school’s systematic and general pathologisation of the problem of crime led to a radical change, which opened the way for – and, indeed, demanded – the inclusion of a new type of knowledge and expertise in the fight against crime. Expertise is defined in this context as ‘a particular kind of social authority, characteristically deployed around problems, exercising a certain diagnostic gaze, grounded in a claim to truth, asserting technical efficacy, and avowing human ethical values’ (Rose 1996b: 86, italics in the original). The form of knowledge and expertise that flourished at this point in time was criminology – more specifically, criminal anthropology. Meanwhile, the idea of the will, which had been prevalent in the understanding of crime, was undermined. Previously, mental illness could be argued on the basis of a medical assessment, and mentally ill offenders were considered insane individuals who happened to have committed a crime. The new situation was one in which a simple medical assessment was inadequate. Professional criminological expertise was crucial to understanding the criminal’s situation, constitution and the level of danger he or she represented. In other words, both preventive and reactive measures had to be based on the

The birth of criminology 31

criminal-anthropological truth regime, as only this would enable an identification of the causes of crime and therefore the factors in relation to which a response could meaningfully be made (see also Lombroso 1902: 347; Garland 1997b: 29, 58–69). The new currents of thought prescribed, in other words, a new type of exercise of power and implementation of crime policy, which had, as its focal point, the protection of society and the social from criminal subjects, and which was not formulated morally, but by means of scientific categories (Foucault 2001a). Criminal anthropology was therefore both an educational project and a socialhygiene project that aimed to use individualising techniques to eliminate the problem of crime, i.e. pathological criminal individuals – in the last resort, quite literally. The recommended measures for the protection of society could take various forms, but scientific documentation allegedly confirmed that habitual criminals, at least, constituted a group of largely incorrigible individuals best neutralised by clear physical isolation/radical exclusion, while occasional criminals and those capable of reform were deemed to have better prospects. When mapping shifts in the conception and problematisation of crime, it is important not to ignore continuities. A couple of these must be mentioned in order to emphasise that the radical changes and new developments described here, were, of course, not merely negations of dominant ideas from previous eras. For example, the idea of free will lived on to some extent, despite the massive critique. This can be seen in Liszt’s advocacy of deterrence for occasional criminals. Another continuity can be observed in relation to the use of individualising techniques. Lombroso represented a radical individualisation of the problem of crime and set the stage for an operational reorientation that focused on the offender’s physiological, psychological and anatomical personality. However, individualising techniques were not a new phenomenon. They were already a theme in the prison debates of mid-nineteenth-century Denmark and elsewhere in Europe (Foucault 1977). As such, there is a certain continuity between the discussion of prison practices and Lombroso’s position. Garland (1997b: 33) is therefore right in noting that the former was a key condition for the positivist school’s breakthrough. Fertile ground already existed for an individualising approach. However, the novelty of Lombroso’s perspective must not be underplayed. The mid-century emphasis on the role of the prison chaplain and religion in leading criminals to the right path shows that very general techniques were used at the time. These may well have been directed at the individual criminal, but the latter was just regarded as an individual who, for various reasons, had fallen foul of the law – not as a fundamentally antisocial being whose identity differed markedly from mankind in general. Only at the end of the century was the criminal categorised as a separate subject, one requiring special treatment techniques or, if rehabilitation was thought to be impossible, special control measures. This was the radically new idea presented by Lombroso and his followers, an idea that would significantly change the Danish problematisations of crime.

Chapter 2

For the protection of society

Danish offshoots The Italian, French and German schools fundamentally changed the parameters for discussing crime, its proper responses and possible prevention. Although Lombroso’s work in particular was met with heavy critique from, for example, the French school and later from virtually every corner of mainstream criminology, it cannot simply be dismissed as invalid or obscure (see, for a similar view, Gibson 2002). To do so would severely underestimate Lombroso’s significance, which lies not least in paving the way for a series of new problematisations of crime that were closely tied to particular technologies of power. The present chapter addresses some of this Lombrosian influence through a discussion of how the new international criminological debates were received in Denmark in the early twentieth century.1 I start out by exploring how the Italian, French and German schools informed the embryonic criminological work in Denmark at the beginning of the century. I then discuss how the new problematisation of the criminal individual gave rise to the recommendation of responses such as individualising treatment and indefinite internment and, in the following section, to a problematisation of crime that attributed key importance to issues of degeneration, producing calls for responses that emphasised eugenic measures such as sterilisation. I end the chapter by discussing how this latter response amounts to what Foucault has called a state-racist programme that combined biopolitical and sovereign forms of power. Although unreserved support for Lombroso’s positive school is hard to identify in early-twentieth-century Danish discussions, the spirit of his programme was explicitly echoed in several contexts. Symptomatic of this is the doctor and senior medical consultant Christian Geill, who, according to Vagn Greve (2002: 22), was the first Danish criminologist. Geill’s key work was entitled Kriminal-antropologiske Studier over danske Forbrydere (Criminalanthropological Studies of Danish Criminals, 1906), indicating that criminology in Denmark emerged from an anthropological-positivist starting point.2 Geill was critical of Lombroso, whom he accused of having ‘lost himself in

For the protection of society 33

fantasies’ and of being too one-dimensional in his focus on the born criminal (1906: 13). But he also praised Lombroso for having ‘introduced naturalscience methodology into criminology and systemised it. [. . .] He has taught us that you must study the criminal in all his forms and compare him with the normal (non-criminal) person’ (1906: 15). Geill presented his own study as a rarity in Denmark, where he had only traced one previous attempt at a ‘scientific study of the criminal’ (1906: 43). Since that work dealt with only a very specific aspect of criminal anthropology – prostitutes’ tattoos – there seemed to be a need for a more comprehensive analysis.3 In spite of Geill’s reservations regarding Lombroso, his criminalanthropological contribution drew heavily on Lombroso’s general approach, but concentrated in particular on the relationship between degeneration and crime.4 By drawing on Liszt and others, he also stressed the significance for criminal behaviour of social factors such as the home and upbringing. Geill presented a study of 1,845 male Danish prisoners, resulting in what he called the ‘pathogenesis of the crime’ (1906: 239 ff.).5 The pathogenesis was based on the assumption that individuals’ actions arise out of the interaction between endogenous (congenital) and exogenous (social influence) factors. Geill’s contention was that only congenital, degeneratively insane criminals become criminals ‘by virtue of endogenous factors, although exogenous factors could have helped induce the mental disorder [and thus the crime]. In all other cases, it must be said that nobody becomes a criminal without any influence from exogenous factors’ (1906: 257). Of the exogenous factors, only one will be highlighted here: the importance of suggestion. The inclusion of this dimension indicates that Geill’s inspiration came, not only from criminal anthropology, but also from Tarde’s sociology. ‘By suggestion we understand the imparting of ideas that the subject assimilates intuitively, not as a result of logical reasoning’ (Geill 1906: 247). Suggestion therefore constituted a psychologically based account of the empirical limitations of the metaphysics of the will (see also Geill 1899b; Tarde 1968: 194). Drawing directly on Tarde, Geill discussed how crowd phenomena – either through physical participation in a crowd or through media coverage of crowd events – could encourage individuals with criminal dispositions to indulge in criminal behaviour. In this context, crime takes on an ‘epidemic’ nature and becomes a ‘mental contagion’ (1906: 250, italics in the original). As this shows, the question of the criminal crowds also became the subject of theoretical discussion in Denmark. In line with international currents at the time, Geill’s interest was not solely in a scientific mapping of the pathogenesis of crime. He also sought a practical solution to the problematisation of this pathogenesis. Here, too, his approach resembled Lombroso’s, albeit with a medical focus: What could be done to prevent crime and treat criminals? In other words, what could be done in relation to this ‘social disease’ (1906: 260)? Geill envisaged prevention on three fronts. First, marriage should be prohibited between those

34 Foucault, crime and power

who, it was feared, would beget offspring with criminal dispositions. Second, alcoholism required intervention because it was said to be the cause of the degeneration of not only the alcoholic himself, but also his children, who had to contend with a criminal disposition. Geill envisaged this being achieved by opening temperance bars, banning alcohol in the workplace (‘at least outside of mealtimes’, 1906: 261), health visitors in schools and the forced rehabilitation of chronic alcoholics. Lastly, he envisaged other measures, some of which were of a more material-spatial nature, namely good and healthy homes (with gardens), parks with wardens, proper nutrition, public baths, health insurance, workers’ insurance, the free treatment of, for example, mental illness and epilepsy, compulsory schooling, children’s homes, reformatories and good leisure-activity options, including choral societies, evening classes, etc., etc. All of these measures would protect predisposed individuals from the mental infection of crime, Geill believed (1906: 261–2). By implication, both specific individual and social factors were ascribed to the criminally ill, and the foundations were laid for very far-reaching recommendations for crime-policy intervention in all facets of life, from reproduction to housing and the regulation of both work and leisure. Wherever the roots of the disease and paths to infection could be identified, preventive measures had to be applied. Yet Geill’s primary interest lay not in prevention, but in treatment. The initiatives he proposed were based not only on the criminal deed but, above all, on criminal-anthropological categorisations of ‘the nature of the criminal’ (1906: 264). Dividing criminals into different classes, Geill presented his recommendations in a seven-point criminal-policy programme, which explicitly challenged the rationale behind the 1866 Criminal Code and called for it to be replaced by insights generated by the new science of criminology and proposals for what he claimed would be a more effective means of dealing with the problem of crime. I shall discuss the content of the elaborate sevenpoint programme in the following: 1

2

3

For insane and severely mentally disabled criminals, who were not liable to punishment under the Criminal Code of 1866 (Section 38), Geill recommended criminal asylums. Unlike ordinary insane asylums, they would house such ‘degenerate individuals with their constant proclivity to carp and be violent and their inclination to escape’ (1906: 266), and release would not be an option until the inmate was no longer ill and therefore no longer represented a danger to society. For the next group of criminals, those with second-rate minds (as covered by Section 39), he recommended indefinite detention in prisons for mental invalids, where treatment was to be combined with outdoor work in order to ensure that the detainees enjoyed fresh air and the right conditions for a healthy body. For children – both those under the age of criminal responsibility and 10–18-year-olds who, under the Criminal Code of 1866, could be

For the protection of society 35

4

5

6

7

punished with the birch, flogging or imprisonment – Geill favoured completely replacing punishment with compulsory education. His argument was based on a stigmatisation rationale: ‘punishment often turns them into criminals, labelling them and introducing them to bad company’ (1906: 268). In other words, punishment risked turning children into habitual criminals. He therefore welcomed new initiatives introduced in 1904–5 to ensure children received a proper upbringing, which had been the idea behind the Act on treatment of criminal and neglected children and young people.6 The dangers of stigmatisation were also cited more generally in relation to occasional criminals. Even short prison sentences could, it was claimed, turn them into habitual criminals. Geill therefore supported the use of suspended sentences for occasional criminals.7 Requirements relating to moral welfare – the content of which Geill did not specify – could supplement the suspended sentence. Another initiative aimed at reducing the number of habitual criminals consisted of alcoholic institutions for chronic alcoholics, who allegedly represented a significant proportion of the habitual criminals. According to Geill, treatment was of limited value to those who had succumbed to alcoholism as a result of a degenerative criminal predisposition. However, he did believe that treatment was useful for those whose descent into chronic alcoholism was mainly due to social causes. Once again, punishment and forced labour institutions were deemed to be ineffective. Instead, Geill proposed that the alcoholic should be admitted to a recovery institution, where the treatment was to be based primarily on outdoor work. For this reason, these institutions were, if possible, to be located on the moors. After two periods of incarceration, recidivists – either alcohol abusers or criminals – ought to be ‘interned for an indefinite period of time in asylums for incurable habitual drinkers’ (1906: 275). As far as the residual group of incorrigible repeat offenders was concerned, Geill was open, in principle, to capital punishment if the individuals concerned constituted a constant danger to other people’s lives. However, the death penalty should not be carried out publicly (1906: 276). He considered indeterminate sentences more apt, because they allowed for the possibility of the offender perhaps actually defying the statistics and rehabilitating. Indefinite sentences could be followed up with conditional release, whereby good behaviour led to parole, during which the criminal was monitored by a supervising officer. Geill also envisaged conditional-release schemes for first-time offenders.

Geill’s programme was heavily influenced by many of the trends described above as new departures in the late nineteenth century. Denmark’s first criminologist agreed with his counterparts abroad on the starting point for

36 Foucault, crime and power

practical work, i.e. ‘that the struggle against crime has only society’s safety as its goal’ (1906: 259). He adopted the criminal-anthropological approach but, like Liszt et al., emphasised the importance of exogenous, social factors. He supported a number of the new movements’ proposals for specific solutions, and applied them critically to the provisions of the Criminal Code of 1866. Geill was, therefore, part of a major break with the conception of crime that prevailed in the mid-nineteenth century. Most significant was his call for individualisation, not only in the enforcement of sentences, which was already part of the prison debate, but in the whole approach to the problem of crime. He retained the demands of the previous era for moral improvement but linked them to an issue of individualisation, with the moral education expected to have a positive effect only on certain categories of criminals and the incorrigible largely abandoned (apart from demands for their indefinite internment). In short, Geill helped to introduce a new form of subjectification – the criminal individual – into the debate in Denmark. He also promoted a variety of measures designed to address this individual, the core of the new problematisation of crime, including classic disciplinary institutions (asylums, prisons, institutions). All in all, Geill was an exponent of one of the first ‘real’ contributions to crime policy in Denmark, a contribution which, by distinguishing the criminal from society, made crime policy an independent field, separate from overall governmental control. However, the crime-policy approach was clearly overlain with other semantics – above all, a medical-pathological semantics and a semantics concerning the protection of society. Geill was one of the first representatives of the new views. His Criminal-anthropological Studies of Danish Criminals can be regarded as a condensed translation of the international discussions, adapted to Danish conditions. However, Geill did more than just condense foreign debates. His principal work also encompassed the main themes of the Danish debate in the early twentieth century. This is no arbitrary assertion, as will be illustrated below, where I will outline how the key issues and perspectives in Geill’s criminal anthropological study attracted general support and, furthermore, how they instituted a new perspective on the exercise of power within the area of combating crime. The issues and perspectives addressed here, both of which helped to bring about a shift in the problematisation of crime such that the protection of Danish society became the focal point, are: • •

a positivist-anthropological perspective involving individualising treatment and indefinite internment, and a degeneration perspective involving eugenics, sterilisation and state racism.

This is an analytical division which, to a certain degree, obscures the fact that the two were closely linked in several respects. It should also be noted that

For the protection of society 37

the two ways of addressing the problem of crime, in addition to dealing with treatment and degeneration, also assimilated a whole series of subissues or related questions – about alcoholism, youth crime, education, moral depravation and the importance of mass phenomena (including the crimegenerating effects of urbanisation) – all of which were attributed a major role at the time. A positivist-anthropological perspective: individualising treatment and indefinite internment Christian Geill is not only notable because of his criminal-anthropological studies, nor did he only attract interest because – in his capacity as prison doctor in Copenhagen and, later, consultant at the state mental hospital in Viborg – he had plenty of opportunities to closely observe practice. He was also a co-founder of the Danish Criminology Association, which set the tone of the Danish problematisations of crime for decades to come.8 Founded on 14 November 1899, the Association was a Danish offshoot of L’Union Internationale de Droit Pénal, and supported that organisation’s ambition to establish solutions to the problem of crime on an empiricalscientific, sociological and anthropological basis. The Danish Association sought this end ‘through lawyers, prison officers, sociologists and practitioners and scientists in other disciplines working together in order to, directly or indirectly, arrive at knowledge of crime and its causes, the criminal and his psychology’ (Dansk Kriminalistforening 1899: 305). It was assumed that the criminal individual could be categorised and studied in his peculiarity. As such, the Association marked the institutionalisation in Denmark of the new conception and problematisation of crime. The Association’s programme encompassed many practical objectives – above all, at its inception, a comprehensive reform of the Criminal Code (1899: 304). This was also reflected in the opening lecture at the Association’s first annual meeting in September 1900, in which the chairman, co-founder and driving force, Professor Carl Torp, stressed the need for ‘a thorough review of our Criminal Code, . . . a reform from the bottom up, marked by a new spirit, a different outlook on the work of criminal law than that which characterised the Criminal Code of 1866’ (1900: 7). The Association may not have required that its members support a particular line or theoretical orientation, but international advances (from Lombroso to Liszt) did form the focal point for the discussions, as well as the foundation for tangible proposals. It was not insignificant that the Association originated as a local branch of the International Union. The metaphysical tradition was therefore generally challenged, and replaced by a natural-science-inspired, etiological approach to the issue of crime, which included strong elements of the positivist-anthropological perspective.

38 Foucault, crime and power

Regarding the etiological aspect, Torp stressed that a ‘thorough knowledge of the causes of crime is the first condition for effectively combating this social evil’ (1905: 30). In contrast to the early Lombroso, he emphasised (as did Ferri, Liszt and Geill) that these causes could not be reduced to purely individual anatomical-psychological conditions; the social dimension had to be included too.9 In his capacity as Professor of Criminal Law, Torp often found himself in agreement with Geill. For example, as per the policy of the International Union, he opposed the short prison sentences introduced by the 1866 Criminal Code. He also criticised the idea of free will. More precisely, in the thesis with the same name, he explored ‘the so-called reduced soundness of mind’ (1906: 3), i.e. the intermediate state that characterised the area between sound mind (and, therefore, punishment) on the one hand and insanity (and, thus, impunity) on the other. The problem lay in determining the criminal status of a person who neither possessed free will nor was of completely unsound mind. According to Torp, the question of soundness of mind was theoretically untenable under the 1866 Act. His reasoning was derived, first, from a legal consideration. In Torp’s eyes, the law presumed a ‘moral guilt in the criminal and therefore an indeterminism, which at best is unprovable and therefore cannot be used as a scientific basis for criminal law’ (1905: 15).10 Second, it was derived from psychiatric assessment, since it was not possible – as the 1866 Act was claimed to presuppose – to identify a conclusive causal relationship between mental abnormality and an individual’s actual actions (1906: 7 ff.). More specifically, the problem with the 1866 Act, according to Torp, was that it did not allow for adequate intervention targeting the large group of recidivists – particularly those who were only partially of sound mind and who, under the Criminal Code, had to be given reduced sentences. Torp questioned definitively the inference that diminished responsibility should lead to reduced sentences, since he doubted that such persons ‘are at all responsive to influence through punishment’ (1906: 14). As an alternative to the 1866 system – and to imprisonment – he advocated the introduction of safety measures for those of reduced soundness of mind, something that had otherwise only been possible for the manifestly insane. Torp described this shift as ‘purely a question of appropriateness’ (1906: 37). Rather than maintaining rigid and inadequate principles, criminal-law sanctions should be based not only on soundness of mind, but also on the efficacy of the punishment on the individuals in question. Torp believed that this would guarantee that society was adequately protected, and he repeatedly cited Liszt as his inspiration in this matter. However, Torp’s recommendations were not only an expression of an ‘appropriate’ shift, they were also, and more precisely, an attempt to make the exercise of power more effective. As such, his critique of the link between reduced soundness of mind and shorter sentences was also a critique of the governmental rationality that underpinned the 1866

For the protection of society 39

Act, and which he considered problematic. Protecting society required a reorganisation of the exercise of power, such that it was possible to impose more efficient sanctions on those less likely to reform. Faced with this group of individuals of less than entirely sound mind, whom Torp referred to as ‘spiritually second rate’ (1906: 53, n. 75), and which included the slightly mentally disabled, chronic alcoholics, and neurotics, he recommended an individualising approach to assessments of culpability, sentencing and enforcement of punishment. Potential alternatives to punishment were to be based on a medical-psychiatric evaluation of the individual’s threat to society and could, depending on the level of danger, range from probation to internment in rehabilitation or detention centres. Not unlike Geill, Torp recommended setting up institutions for chronic alcoholics, epileptics, etc., divided according to the different sub-categories of the ‘spiritually second rate’. The key factor was that the use of these security measures was not to focus on the original criminal act: The length of the internment must depend not on the severity of the crime committed, but the nature of the criminal’s mental condition. It must therefore continue until he [. . .] no longer constitutes a threat to the rule of law. (1906: 64) Several of these proposals would eventually be put into practice with the adoption of a new Criminal Code. The first attempt at reforming the Criminal Code of 1866 came in 1905, with the establishment of a Commission tasked with reviewing the existing regulations. The Commission’s work resulted in a report in 1912 that met with heavy criticism from the Danish Criminology Association in general – and from Torp in particular. In brief, the critique was that the Commission did not do enough to challenge the governmental rationality that underpinned the 1866 Act. For example, it may well have suggested certain special measures against mentally deviant criminals, but it did so without abandoning the metaphysics of will (Report 1912: sections 84, 39 ff. (the motives); see also Tolstrup 1972: 14; Torp 1912: 24–5). The Commission also proposed that a whole series of minor offences should result in punishment, whereas Torp – as per the international movement – argued that, in general, sanctions had harmful effects and so preferred that actual punishment be limited to circumstances that rendered them strictly necessary (1912: 26–7). The criticism led, in 1914, to the Ministry of Justice requesting that Torp prepare a follow-up report, which was published in 1917. It incorporated a number of ideas previously presented by Torp and the Association, including the recommendation for the preventive detention of criminals not likely to be reformed by punishment. Indeed, it argued, punishing these criminals might even have directly negative consequences for society, in the form of increased

40 Foucault, crime and power

recidivism as a result of forging new contacts in prison. He drew a distinction here between two groups. On the one hand: those who, because of their weak character and lack of energy and stability, are unable to fend for themselves in a regular manner and therefore, without otherwise showing strong criminal propensities, exist as habitual beggars or vagrants. These people are not actually dangerous to society, but can be very difficult, especially since, as a rule, they are also drunkards, with little resistance to temptations such as petty theft and other minor offences. (Report 1917, the motives: 60) Faced with these often ‘to a certain extent mentally defective’ individuals, who were deemed resistant to punishment, but against whom society needed a form of protection, Torp recommended prolonged detention in the workhouse. The ultimate aim was to accustom the incarcerated to an ordinary life of labour. On the other hand, there were the criminals who, it was asserted, represented an actual danger to society, but were not believed to be reformable through punishment, namely the ‘chronic offenders’, i.e. the ‘professional thieves’, the ‘habitual violent offenders and sex offenders’ and the ‘incorrigible pimps who, as a rule, in addition to their actual business, act as both thieves and violent criminals too’ (Report 1917, the motives: 61–2). Instead of custodial sentences, these chronic offenders faced indefinite preventive detention (Garde 1999: 56). In his report, Torp therefore reiterated the key elements of his approach: that imprisonment was merely one means among several, that sanctions should be adapted to the level of threat posed by the criminal – and should therefore be individual – and, finally, that prison sentences for dangerous individuals not likely to be reformed by them, should be replaced by indefinite detention. Torp’s report formed the starting point for another report by a new criminal commission set up by the Ministry of Justice. This consisted solely of members of the Danish Criminology Association, including two of the founders, namely Torp and August Goll. This report, published in 1923, showed that there was still a struggle regarding the understanding of key concepts related to crime and sanctions and particularly regarding the weighting and use of psychiatric versus legal forms of knowledge in an assessment of soundness of mind (see Report 1923). Ultimately, however, the approach promoted by Torp was endorsed in the Criminal Code of 1930. The new Criminal Code was adopted in April 1930 and came into force on 1 January 1933. The law marked a political recognition of, and support for, the conception of crime that emerged from the international movements and gained ground in Denmark. First and foremost, the number of ‘ordinary punishments’ was restricted to three: prison sentences, short-term incarceration and fines, with prison sentences no shorter than 30 days and short-term

For the protection of society 41

incarceration of no fewer than seven days (Criminal Code 1930: Sections 31, 33 and 44). The aim was to simplify the former, highly complicated system of punishments, which allowed for even the shortest of short-term incarceration. This was in line with the proposals of the International Union. In addition, relatively indefinite sentences in juvenile prison were introduced for young offenders whose crimes were believed to be ‘manifestations of criminal inclinations or the inclination to idleness or to seek out bad company’, and for whom the political system considered that long-term educational measures would be useful (Criminal Code 1930: Section 41.1). Two things are interesting here. First, the sanction was conditional on the cause of the crime and its effects (which were linked with the criminal’s personality), and not the offence itself. Second, in accordance with Lombroso, Ferri, Liszt and Geill, it was imagined that young offenders could still be reformed.11 For re-offenders, the Act introduced two alternatives to ordinary punishment: the workhouse and preventive detention. A recidivist with, for example, a background that ‘characterises him as a professional or habitual criminal’ (Section 62.2; note how these scholarly concepts were incorporated into the legislation), but who did not present a danger to society, could be sent to the workhouse. This confinement, which was to last at least a year, was, in principle, not a fixed term. The newly created Prison Board was responsible for determining whether an inmate should be released, based on the recommendation of the workhouse management (Waaben 1961: 48; the same principle also applied to juvenile prison (see Chapter 3)). However, the upper limit for confinement in the workhouse was five years. As recommended by Geill, among others, it was also stipulated that the sentence should incorporate as much outdoor work as possible (Section 64). If ‘concern for the safety of society requires it’ (Section 65), a recidivist could be sentenced to preventive detention, from which release was not permitted for a minimum of four years. Again, the Prison Board was authorised to assess the potential for release – and here, too, the sanction was open-ended.12 Perhaps the most significant break with the Criminal Code of 1866 concerned the question of the criminal’s normality/abnormality and the sanctions associated with this assessment. Sections 16 and 17 formed the basis for this. The former extended the previous provision concerning unsound mind: ‘Impunity is accorded to actions carried out by persons who are unreliable because of mental illness or disorders that can be treated as such or who are mentally deficient to a higher degree.’ The phrase ‘that can be treated as such’ had been central to the discussions in the 1923 Report. In addition, Section 17 introduced a provision according to which some individuals could be characterised as not reformable by punishment: If, at the time of the criminal act, the offender was afflicted by a longerterm condition caused by lack of development and weakened intellectual capacities, including sexual abnormality, but was not covered by Section

42 Foucault, crime and power

16, the court will decide, after considering the medical certification and all other circumstances, whether he can be considered as likely to be reformed by punishment. (Section 17.1)13 If the person was declared fit for punishment, this could take the form of incarceration in a special institution (psychopath prison). If, on the other hand, it was decided that the individual concerned was unfit for punishment, this did not mean that no sanction should be imposed for the offence. On the contrary, the 1930 Criminal Code introduced a series of provisions regarding measures directed against individuals who posed a threat to the rule of law, but where punishment either could not be imposed (Section 16) or was deemed to have no effect (Section 17.1). In such cases, the consequence could be that the individual concerned was placed ‘in a mental hospital, an institution for the mentally sub-normal or other cure or care institution, a healing institute for drunkards or in a special preventive detention institution’ (Section 70.1). Once again, this was an open-ended sanction. The order could only be terminated by the court, and only after obtaining a medical report. Furthermore, alcoholics could be punished by being placed in a ‘healing institute for drunkards’ (Section 73) for up to 18 months (for repeat offenders, up to three years). The purpose and consequences of the new Criminal Code were quite clear. First, it signified legislative recognition of the rejection of the metaphysics of the will. Second, it stressed the individualising point of view and, in doing so, pushed the primarily generally preventive tone, which had previously been so dominant, into the background.14 Also crucial was an evaluation of the future threat posed by the individual criminal. In other words, the focus was on observing the individual as a ‘potential source of acts’ (Foucault 2001a: 199; italics added). A degeneration issue: eugenics, sterilisation and state racism Geill cannot be linked solely with a positivist-anthropological perspective on individualising treatment and indefinite internment. He also contributed to the second of the main currents that dominated early-twentieth-century Danish conceptions of and responses to crime. As mentioned earlier, Geill noted the importance of degeneration for criminal behaviour, but he was far from the only person to argue that there was a correlation between degeneration and crime in Denmark. One of the most systematic attempts to examine this relationship scientifically is found in the work of Professor August Wimmer MD. Wimmer, who sat on the board of the Danish Criminology Association, was a consultant at St Hans Hospital and at the psychiatric ward of the National Hospital. As such, like Geill, he had the

For the protection of society 43

opportunity to link theoretical production to daily practice. And similar to Geill, Wimmer conceived (children’s and young people’s) crime within a medical framework – in other words, not primarily sociologically or legally, but pathologically. In the following, I shall highlight parts of Wimmer’s work – especially Degenererede Børn (Degenerated Children, 1909) – in order to show how the new conceptions of crime merged with concepts such as social hygiene and even eugenics. The general definition of degeneration at the time was: ‘degeneration can in general be understood as the condition that an organism, under certain conditions, can be born with a lower biological value than that which is characteristic of the species to which the organism belongs’ (1909: 5, italics in the original). Wimmer went on to say that any normal development is characterised by a biological harmony between the organism’s biological properties, and this harmony cannot be ‘impaired, disrupted or dissolved without the organism’s vitality being weakened’ (1909: 5). These quotes highlight the problems that were thought to stem from degeneration. The order and strength that characterise the healthy organism are broken down, which lowers the organism’s chances of survival. Wimmer pulled no punches in his assessment of the potential dangers of degeneration: Degeneration has a pronounced tendency to further propagation to one or more succeeding generations, as a rule, as an increasing deterioration of their biological value; the most categorical result of degeneration will therefore be the line dying out. (1909: 5, italics in the original) In this light, is not surprising that Wimmer focused his attention on children. He argued that any degeneration and secondary effects would show up in children, and that measures had to be put in place at an early stage in order to prevent degeneration from spreading to future generations. Wimmer explicitly discussed Lombroso’s theory of the born criminal, but declined to characterise this category as an anthropological human type (1909: 130–1; see also 1929: 63–4). More precisely, he accepted the idea of born criminals, but reinterpreted the character of these individuals, treating it not as an anthropological dimension (which included both physical and mental conditions), but above all else as a moral and mental defect. Wimmer therefore reduced Lombroso’s anthropology to moral pathology.15 He placed less importance on external characteristics which, for born criminals, were claimed to be secondary to, or derivative of, mental degeneration. Instead, he highlighted a number of mental aspects, such as intellectual deficits, cunning, antipathy, malice, greed, selfishness, mendacity, etc. According to Wimmer, these were all characteristics of the morally degenerate child (1909: 132 ff.).16 Wimmer did not claim that the whole reason for, or the cause of, crime could be attributed to degeneration, and acknowledged that other, mainly

44 Foucault, crime and power

social factors could have an effect and help determine criminal behaviour. Nevertheless, he wrote that: Although mental degeneration is far from bearing the whole responsibility for the ever-growing army of child criminals, although social conditions of various types perhaps play the main role, it is, however, certain enough that mentally degenerate children and semi-adult individuals provide a very large number of recruits to the criminal army. The largest group consists of mentally deficient and morally degenerate children. (1909: 142, italics in the original) Once again, it is clear that the problem of crime was embedded here in an antagonistic semantics about enmity, in which it was feared that armies of criminal individuals – degenerates in the literal sense – would ultimately destroy society and herald its final demise. Wimmer documented his concerns statistically, which need not be addressed here. However, it should be noted that he considered certain types of crime as normal for the two main groups of degenerate children he analysed – the mentally deficient and morally degenerate. These categories did not differ qualitatively from each other, but their differences were evaluated in terms of intensity (see e.g. 1909: 132). For Wimmer, the mentally deficient child commits less serious crimes and is categorised either as an occasional criminal or someone who commits crimes of passion – in other words, the criminal behaviour was the result of, for example, temptation, being led astray or trivial motives. By contrast, the morally degenerated child’s crime often arose: out of malice, hatred, envy, etc.: He or she commits thefts in cold blood and often with great cunning. [. . .] The morally degenerate child constantly poses a danger of moral infection within institutions – e.g. school, etc. – and can cause a moral depravity that only slowly fades when the child is removed. (1909: 150) In other words, Wimmer – like Lombroso – specified criminal types who were allegedly predisposed to crime. Furthermore, he adapted an etiological approach, in which the cause of the disposition, i.e. degeneration, was identified. This way of problematising crime as a matter of degeneration had implications for what were seen as the proper responses to crime. In order to arrive at specific recommendations, Wimmer introduced a differentiation between internal and external causes of degeneration. The external causes included effects on the foetus or child that resulted from illness, injury, etc., but were not inherited from the parents. The internal causes, however, were inherited. According to Wimmer, these were the key to understanding degeneration. These congenital causes could themselves be

For the protection of society 45

divided into two main types, which often interacted. First, endogenous degeneration, in which the child’s abnormalities were inherited from its parents, i.e. through the family. Second, so-called germinative (incipient) degeneration, in which illnesses, poisoning, etc. adversely affected cells in utero and thus the child (1909: 8). Poisoning could be caused by alcohol, for example. In particular: alcoholism’s alarming effects on the offspring unfortunately seem to grow day by day, so that alcoholism as a social evil is probably one of the largest. [. . .] By far the greatest danger for the offspring comes from chronic alcoholism in the parents. (1909: 19, italics in the original) Interestingly, Wimmer also discussed the importance of upbringing, though he did not believe that poor upbringing could in itself cause degeneration. In cases where a child was only a carrier of a very mild form of degeneration, Wimmer claimed that expert education could act as a barrier and prevent the disposition from expressing itself (1909: 27 ff.). In light of the potentially negative consequences for the child of a bad upbringing and the bad example of its parents – ‘childhood’s most virulent bacteria’ (1909: 28–9) – Wimmer, like Geill before him, welcomed the 1905 Act on the treatment of criminal and neglected children and young people. However, he would have preferred the authorities to intervene before the child embarked upon an antisocial career, i.e. before the bad upbringing manifested itself in crime. Upbringing within the family was hardly debated when considering the question of how, as Wimmer put it, to fight child degeneration. Instead, Wimmer prescribed more direct and reactive treatment, as well as proactive measures. Reactively, as soon as degeneracy was identified, it was necessary to ensure that the child did not suffer physical distress. The child needed a proper diet, adequate sleep, plenty of fresh air, etc. After that, the child’s specific form of degeneration was observed and formed the basis of the specific, individualised treatment. According to Wimmer, it was often necessary to remove the child from the home, and perhaps place it in a proper reform school where, in addition to the provisions specified in the Act of 1905, it would be necessary also to provide psychiatric treatment. In addition, degenerate child criminals ought to be placed in indefinite psychiatric treatment in special institutions (1909: 258). Wimmer also discussed more radical and proactive solutions to the problem of degenerate criminals. Although he counselled restraint in the question of banning marriage between, e.g. alcoholic or mentally abnormal people,17 he did not preclude that stricter legal regulation might be required: ‘Doubtless, concern for the individual’s personal liberty [to bring children into the world] can be taken too far’ (1909: 249; see also Koch 1996: 252, n. 39).

46 Foucault, crime and power

He demanded, therefore, that alcoholics undergo a successful rehabilitation process before being allowed to marry. He also suggested castration of criminals, alcoholics, etc. as an option.18 Here too, there was a shift from a reactive crime policy (punishment, etc.) to a programme in which the idea was to stop degeneration by completely preventing offspring from coming into the world. This was, in other words, a radical biopolitical programme that literally aimed to purify the population, eradicate the internal dangers and thereby counteract the long-term demise of the population. Wimmer acknowledged that the castration proposal would be resisted, but continued to promote it, arguing that ‘on deeper reflection it is not as rough or inhumane as it sounds on the surface’ (1909: 250). The link between genetics and eugenics, including the castration of socially dangerous elements, would prove to be one of the most prominent aspects of the problematisation of crime in Denmark in the early twentieth century. It was not only supported on a scholarly level, but was also laid out in practical political programmes.19 Among the contributions of a predominantly scholarly nature was Viktor Bruun’s Forbrydelse og Samfund. Social Sundhedspleje i Videnskab og Praksis (Crime and Society: Social Health Care in Science and Practice, 1915), which, as its title suggests, linked the problem of crime to the question of the health of society.20 Bruun defended and presented as humane the eugenic principle that persons who were physically and/or spiritually ‘poorly equipped’ should be given as much support as possible. However, this had to be done on the condition that the individuals concerned did not breed and thus pass on their poor genetic material (1915: 39–40). As a result, he endorsed the idea of making ‘the breeding question the crux of the race culture and crime policy’ (1915: 43). By linking this to Lombroso’s thesis of the born criminal, Bruun thus proposed a model for the control of hereditary criminals that, in line with critiques of the existing system at the time, sought to find alternatives to imprisonment – and even claimed to present a more or less guaranteed long-term solution. In his description of the phenomenon of contemporary crime, Bruun also devoted a chapter to the whole issue of the crowds, in which Tarde was central to his thinking. Crowds attracted Bruun’s attention because of their ability to interfere with the members’ normal judgement and lead them to commit criminal acts (Bruun provided several examples of this). However, he did not advocate a eugenic solution to the problem of the criminal masses and the damage they caused. Indeed, on the whole, he did not identify any solutions. By contrast, Karl Kristian Steincke, one of the pioneers of eugenic political programmes in Denmark, did make a connection between eugenics and the criminal masses. In Fremtidens Forsørgelsesvæsen (The Public Assistance Body of the Future, 1920), Steincke presented a proposal for a sweeping reform of the Danish welfare system. The premise of the book was largely Marxist-inspired. In the Introduction, Steincke quoted an excerpt from Marx’s 15 theses on the

For the protection of society 47

dialectical-materialist conception of history. However, he also incorporated aspects relating to the problem of the masses and urbanisation. The need for a public-assistance system arose out of the societal problems of accelerating impoverishment produced by the logic of the economic system, and also a brutalisation of morality: ‘A leaden indifference and apathy are settling over the masses’ (1920: 7). Observing these urban masses – Steincke (1920: 7) spoke of an ‘amorphous mass’, ‘endless rows of tenements’, etc. – he concluded that traditional social ties had dissolved.21 Both moral and family-based judgements and forms of organisation were under heavy pressure in the urban proletariat. According to Steincke, the overarching solution to these problems had to go beyond just improving general social conditions – eugenic measures had to be instigated too (1920: 240).22 Steincke (1920: 242) explicitly endorsed Viktor Bruun’s argument that it is humane to provide the best-possible living conditions for those most damaged by hereditary factors, in return for preventing their reproduction. He was a proponent of restrictions on marriage and the sterilisation of criminals, for example, whose defects would otherwise be handed down to future generations – and, perhaps, would worsen as time went on. In his critical review of potential eugenics options, he also discussed functional equivalents, such as confinement for life – ‘the most effective means to protect society and future generations’ (1920: 248) – which he rejected on the grounds that it would be too costly. Eugenics had clear economic advantages. There were, however, still too many ambiguities in contemporary scientific genetics for Steincke to recommend specific proposals for tangible eugenics measures. As a result, he proposed that a commission should be set up, comprising representatives of medical science, the prison system, etc., to map out the need and options for incorporating eugenics initiatives into public welfare (1920: 265). He followed up on this idea as Minister of Justice in 1924, when he set up a sterilisation commission (Koch 1996: 57).23 In 1926, the Commission Concerning Social Measures against Certain Degenerative Persons published its report on whether the sterilisation and/or castration of certain individuals could be recommended, and for what purpose. By way of introduction, the Commission outlined three purposes that it considered relevant and which, either collectively or individually, could be achieved by means of the proposed measures. The first purpose identified was crime prevention – the Commission thought that castration would prevent certain people from committing sexual crimes (see also Goll 1934: 87). Second, it stated a more: wide-ranging purpose – to improve the entire population’s mental and physical health by rendering certain groups of socially worthless or harmful individuals incapable of generating offspring who would be expected to be just as useless or harmful to society as their parents. (Report 1926: 7)

48 Foucault, crime and power

This was clearly a eugenic ambition, which the Commission, indeed, acknowledged.24 The third purpose of sterilisation also sought to prevent people procreating if there was a reasonable risk that their children would be predestined to be a ‘burden on and menace to society’ (Report 1926: 7). However, in this instance, the rationale was not only determined by degeneration’s connection with criminal tendencies (the threat argument), but also on socio-economic grounds. Koch (1996: 61) interprets this as a socially preventive endeavour. The fact that society was accorded greater consideration than the individual was also reflected in the Commission’s name. The measures to be debated evidently had a social character, even though the Commission’s recommendations were based on the most recent advances in genetic and sexual biology (Wimmer was a member of the Commission, and one of several contributors to its work). The biopolitical recommendations had, therefore, assumed a form where even highly intrusive crime-policy initiatives regarding the most intimate biological sphere were quite naturally promoted in the name of the social, and thus society. The private nature of sex had become subservient to the interests of society (compare Foucault 1990). Although the Commission ended up concluding that it would not explicitly advise eugenic legislation,25 the third of the purposes outlined above – preventing procreation between mentally defective individuals (i.e. those who were not expected to be able to look after and bring up their children) – led to a recommendation in favour of sterilisation.26 This was not completely without eugenic connotations, however, because the potential offspring were considered to be genetically predisposed to antisocial behaviour. Yet the eugenic content was toned down – it was not mentioned at all in the Commission’s bill – and was interwoven with the parents’ alleged inability to set their children right through upbringing (see also Koch 1996: 70). At the same time, the possibility of promoting eugenic programmes more explicitly in the future was stressed. It was stated, for example, that the pilot scheme proposed by the Commission could appropriately ‘serve as a basis for possible further expansion of actual eugenic measures’ (Report 1926: 28). Many features of the draft bill were introduced in 1929, at which point some of the administrative aspects – i.e. to whom applications for sterilisation should be addressed – were changed. The new Act was an experiment, to be reviewed after five years. It stated that it was possible to sterilise individuals for whom it must ‘be considered of paramount importance for society and beneficial to themselves that they are rendered incapable of procreation’ (Act No. 130 of 1 June 1929: Section 2). However, this only applied in so far as the person involved expressed the desire or, in the case of those already in institutions, at least acquiesced. Later laws, in this and related areas, followed up and reinforced the eugenic aspects.27 It is, therefore, far from the case that the idea of eugenics and crime disappeared after this – rather, it slowly ebbed away.28 The eugenic perspective

For the protection of society 49

became institutionally anchored with the establishment of the Department of Human Hereditary Biology and Eugenics at the University of Copenhagen in 1938. The professor in the department, Tage Kemp, addressed the problem of crime and its possible solutions in multiple contexts. Lombroso exerted a significant influence on Kemp’s approach. According to Kemp, there was ‘undoubtedly a kernel of truth in their [Lombroso’s and others’] theories, although they contain misunderstandings and in some respects overshoot the mark’ (1960: 196; see also Kemp 1946). What Kemp was able to support was the basic etiological approach to the question of crime, which consisted of mapping the causes of crime through a study of criminal individuals’ pathology, out of which possible measures to reduce crime could be formulated.29 In other words, Kemp was part of the tradition of thought that interpreted crime as being a matter of defective individuals. He also attributed an important role to the environment but, as a eugenicist, maintained the crucial importance of heredity. Thus, he presented the relationship between heritage and background – the subject matter of one of his books (1960) – in such a way that unfavourable genetic material made its presence felt more easily if social conditions were poorer. However, the criminogenic seed had already been sown before the environment was able to have any impact (1936: 245; 1960: 197–8). On this point, there was, in principle, no disagreement between Kemp and (for example) Wimmer. Kemp also continued to maintain the idea of antisocial or even asocial individuals and families, but he also added a new category: a special group of individuals on the dividing line between normality and abnormality. In particular, he studied prostitutes who, as a group, exhibited traits that he asserted were also found among alcoholics.30 The study of prostitutes could therefore serve as a basis not only for the treatment of this widely proclaimed problem, but for the understanding of the whole group of borderline individuals who, for social and eugenic reasons, occupied a problematic role in the social order. It is therefore appropriate to see Kemp’s proposals for solutions as general recommendations that went beyond the specific issue of prostitution. Kemp reached the conclusion that the majority of prostitutes (a total of 530 were studied) fell somewhere between normality and abnormality. For this reason, he felt that traditional sanctions, such as fines and imprisonment, would not affect their behaviour. Similar to the movement initiated by Lombroso, he sought alternative forms of regulation. Among these, he recommended enhanced psychiatric observation and treatment of the individuals concerned; mental observation to better tailor assistance to the individual; eugenic registration in order to better identify the genetic historical conditions; and general improvement of social conditions (Kemp 1936: 174 ff., 242 ff.). Among the more general preventive – and disciplining – measures, he listed sterilisation, marriage counselling (combined with guidance on birth control) and physical-spatial isolation/segregation (1960: 236).31

50 Foucault, crime and power

The emergence of this branch of eugenics, dedicated to practical responses to the problem of crime, is illustrative of a close relationship to truth production. First, it was difficult to determine definitively whether degeneration existed in a particular case, or whether criminal propensities could, in fact, be attributed to non-hereditary factors. Put bluntly, ‘[d]egeneration reflects an evaluation’ (Report 1926: 28). The individualising and judgemental view that Foucault describes in relation to normalisation was therefore widely employed within the eugenics camp. Consequently, although the approach was distinguished by a high degree of alleged scientific objectivity, its practical application was tied to evaluations that were based on how much knowledge and truth could be produced about a given individual. Second, eugenics as a whole was characterised in its self-description by a rational approach, in which scientific documentation was to be translated into initiatives through which not only the individual, but society and the population, were to be steered onto the right path. This was the line taken by many who participated in the genetics debate, including the German sociology professor Theodor Geiger, who lived in Denmark. In his book Samfund og Arvelighed (Society and Genetics), eugenics was presented as a project that drew directly on Enlightenment thinking: ‘Eugenics consummates the idea of rationalisation, as it builds on and modifies the individual’s shortsightedness with society’s far-sighted rationalism’ (1935: 28, italics in the original, see also 41).32 Geiger is interesting not only because of his accentuation of the rationality that the supporters of eugenics believed underpinned the proposed modus of governance – and which could perhaps achieve the desired state of modernity that would otherwise remain an unrealised project. He also attracts attention in two other areas. First, he was very explicit about the all-encompassing biopolitical aspects of eugenics. He wrote about the relationship between looking after the gene pool and looking after life in general, which ‘encompasses all public and private precautions that serve to provide favourable conditions for man’s physical and mental development and existence’ (1935: 257). In this way, he clearly emphasised that life and the living formed the starting point for the eugenic programme, but also acknowledged that its ramifications were difficult to delineate. Second, and perhaps more importantly, he divided up negative eugenics (in his own words, ‘genetic health care’) into four types: marriage bans, incarceration/institutional care, abortion and sterilisation (1935: 191; see also Goll 1934: 84 ff.). The marriage ban for the mentally ill had already been introduced in Denmark. However, according to Geiger, this measure was of little value unless it was complemented by a sterilisation option. The argument was that a ban on marriage did not prevent procreation, per se.33 Geiger was not generally in favour of abortion, believing the procedure too dangerous. Instead, he recommended sterilisation, which he described as ‘the most radical path to extinction’ (1935: 202).

For the protection of society 51

However, most interesting in the context of this chapter is the remaining category of initiatives that Geiger associated with the eugenics programme: incarceration, including in institutions (1935: 201–2, 229). Geiger’s point was that, provided the institution exerted sufficiently strict supervision, it would be possible to prevent inmates cultivating contact with the opposite gender. Thus he endowed upon biopolitical genetics a technological and spatial dimension, arguing in favour of isolation as a eugenic precautionary measure (see also Koch 1996: 180). This is an interesting argument because it allows for an understanding of a correlation between elements that at first glance seem very different: namely, the Internment Act and the Criminal Code of 1930, on the one hand, and decidedly eugenicist examples of crime policy on the other (the Sterilisation Act, the amendment of the Marriage Act, etc.). From Geiger’s perspective, the connection is that the detention and internment measures that derive from criminal law – such as indefinite detention – can be associated with an overall eugenicist programme. The form of power associated with the problematisation of crime changes in the light of the eugenics recommendations. It has been argued previously in this book that the nineteenth-century debate about prison(s) was epitomised by individualising and disciplining approaches, in which crucial significance was attributed to the individual prisoner’s isolation and moral/religious self-work. In other words, it involved the disciplining power technology described by Foucault in Discipline and Punishment – a form of power that, as mentioned previously, represented a break with the earlier sovereign exercise of power, which followed the logic of the sword and, in Foucault’s words, enforced only the right to ‘take life or let live’ (1990: 138, italics in the original). It was also argued that, in the mid-nineteenth century, the problem of crime was still addressed within an overall governmental-biopolitical framework, in which solving the problem involved the regulation of the general population, and that the scientific view on crime only manifested itself with the emergence of criminology. The interesting aspect of this is that the birth of criminology in Denmark paved the way for the assimilation of the biopolitical into sovereignty’s power-technological modus, namely in the form of a particular biopolitical state racism.34 According to Foucault, racism consists of two factors (2003b: 254 ff.). First, it delineates between what must live on and what must die: This will allow power to treat that population as a mixture of races, or to be more accurate, to treat the species, to subdivide the species it controls, into subspecies known, precisely, as races. That is the first function of racism: to fragment, to create caesuras within the biological continuum addressed by biopower. (2003b: 255)

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Second, racism provides a biopolitical reinterpretation of the message of war: ‘if you want to survive, you must do away with the enemy’. It transforms this relationship from a warlike political issue into a biological one: In the biopower system, in other words, killing or the imperative to kill is acceptable only if it results not in a victory over political adversaries, but in the elimination of the biological threat and the improvement of the species or race. (2003b: 256)35 According to Foucault, racism takes the form of state racism the moment this biological racism is centralised in the political system (2003b: 82). Much of the early-twentieth-century responses to crime subscribed to just such a state-racism project, in which crime was basically observed as a question of race (see also 2003b: 258). A line can therefore be drawn from Lombroso’s general anthropological determination of criminal individuals, based partly on a biological measuring scale, to the Danish heirs to the degeneration theory. Both involved a biologically determined division of the human race into, on the one hand, social and healthy individuals and, on the other, antisocial and unhealthy individuals. It is also worth stressing that there is a line from the Enlightenment through to state racism. Linking degeneration theory to the Enlightenment idea of creating improvements through rational knowledge, and the idea of protecting the social and society, forms a state-racist entity that breaks with the positive image normally associated with Enlightenment thought. Even though, in some parts of the crime debate, arguments were proffered in favour of actual executions (see, for example, the positivist school’s demands for the elimination of dangerous individuals), the sovereign exercise of power in the first half of the twentieth century was about preventing certain types of life from entering the world in the first place. To quote Bruun and Steincke’s mantra: the degenerate should be provided with a good life on Earth, but prevented from creating new life. Or, to repeat the same point in more theoretical terms: where biopolitical regulation considered its task as being to foster life and the living, the state-racist project was about cleansing the population of degenerative-criminal features with the help of eugenic-characterised measures, i.e. through a biological – i.e. not primarily social or political – battle with the carriers of unhealthy or antisocial traits. This was claimed to be the most effective long-term tool for doing away with the mental contagion of crime. In other words, the period witnessed a quite complex mix of power technologies. The recommendations included disciplining techniques that focused on the individual’s control of his or her own instincts, biopolitical regulation focusing on the population’s general well-being, and a resurgent sovereign power technology that worked through racism and which, therefore, merged with the biopolitical, i.e. it reappeared in biopolitical packaging.

For the protection of society 53

It should be emphasised that the field of crime by no means occupied a unique position in the promotion of state racism. On the contrary, it should only be considered as a subset of a universal eugenic and state-racist programme informed by, for example, degeneration theory, which sought a broad socialhygienic improvement of the race, in which deviants and the abnormal were to be segregated, and where the protection of society was aligned with the protection of the race (see also Koch 1996; 2000). Moreover, even if eugenics was prominent in Denmark, several other countries, such as Germany, Sweden and the UK, adopted eugenic thinking, also with respect to problematisation of crime, and surprisingly little critique was voiced against this commitment to eugenics (for discussions of the adoption of eugenics in countries other than Denmark, see Garland 1985; Rafter 1998; Rose 2001; Wetzell 2000; for a recent analysis of debates on eugenics, see also Lemke 2014).

Chapter 3

The rise and fall of the treatment ideal

Treatment of criminals should form the main component of both enforcement of sentences and precautionary measures. (Stürup 1952: 3, italics in the original)

The state as regulator of the social sphere In the early twentieth century, the problematisation of crime emerged as a critique of, in particular, the nineteenth-century metaphysics of the will, and primarily served as the basis for a rethinking of the whole approach to the crime problem and its solutions. However, following the endorsement of the 1930 Criminal Code, the discussion became more technical in nature. The first battle had now been won. The reference point in the crime debate was now the perpetrator, not the act – in other words, the problem now had a face. At the same time, the idea of protecting society against crime had also turned both the handling of eugenic initiatives and the sanctions imposed on criminals, into an important state matter and responsibility. This attribution of responsibility was not specific to the field of crime, but was part of a general movement that ‘built on the assumption that the political form of government, by an expansion of the state’s scope and power, would be able to achieve a gradual and simultaneous improvement of the conditions for all forces and blocks in society’ (Rose 2003: 188). As Rose notes, this was, in reality, a new social contract, one that, unlike the classical Hobbesian idea, was not just about the sovereign protecting the citizens. Rather, the legitimacy of the state depended on the active support, improvement and development of social forces through the provision of health, safety, order, education, etc. In the field of crime, this was reflected, among other things, in demands for the rehabilitation of criminals. Thus, the sweeping regulation of the social sphere, for which this rationality paved the way, involved attempts to govern in a manner that combined the recommendations in favour of treatment that emerged from the new problematisation of crime with the rationale that underpinned the social state and saw the resocialisation of criminals as both humane and necessary. David Garland (1985) refers to this

The rise and fall of the treatment ideal 55

as the emergence of a ‘penal-welfare complex’ characterised by its appeal to both the criminology ethos and the welfare-state ethos. In an elaboration relating to the UK situation, but which is strikingly apposite for Danish conditions, Garland adds that: The practicability and the durability of the penal-welfare framework lay precisely in the fact that it combined both penal and welfare aims, that it was flexible enough to emphasize one or the other according to circumstance, and that it was largely removed from close public scrutiny. (2001: 35) Based on the political-legal support for the new problematisation of crime, the aim was to balance the state’s social-rehabilitation and crime-prevention roles. The regulations that were subsequently drawn up indicated that focusing the crime discussion on institutions was one thing, but that the governmentalisation of the conceptions of crime – that is, transforming them into technical regulations – was a completely different matter.1 This technical dimension – the offender’s social rehabilitation/rehabilitative treatment – is the subject of this chapter. The idea was that treatment, indefinite sanctions, individualisation of the criminal, etc., would resocialise the antisocial individual both as a goal in itself and as a means of protecting society. The recommendations for managing this in practice incorporated multiple aspects (pedagogic, psychiatric, etc.). The chapter focuses, in particular, on the psychiatric dimension because this was the most developed aspect of the treatment ideal. In purely quantitative terms, psychiatric treatment was a less widespread form of treatment. Significantly fewer inmates were subjected to psychiatric treatment than to pedagogic treatment. However, the psychiatric approach stands out because it was the subject of extensive theoretical reflection. In addition, psychiatric expertise achieved a dominant status that, for a long time, remained virtually unchallenged (Garland 2001: 36). Nobody seriously questioned whether psychiatry’s diagnostic approach, truth regime and techniques could bring a solution to the crime problem any closer. It was not until the 1960s that strong, and growing, doubts began to be raised about the project prescribed by the treatment ideal, which I will discuss at the end of this chapter. First, however, it is useful to review the different types of institutions ushered in by the 1930 Criminal Code and the new conception of crime. Particular emphasis will be placed on the incarceration of psychopaths in Herstedvester – more precisely, on the governmental rationality involved, as advocated by Georg K. Stürup, who was consultant psychiatrist there for many years. Stürup was to the psychiatry-inspired treatment ideal what Lombroso was to criminal anthropology, and his theoretical reflections and descriptions of the institution’s practical work received massive attention in Denmark and abroad.

56 Foucault, crime and power

Special measures for individualised treatment As mentioned in Chapter 2, the Criminal Code of 1930 contained a differentiated system of sanctions. The idea was that society was best protected by tailoring responses to the nature of the individual criminal. This was based on an evaluation of the level of danger posed by the individual and the likelihood of punishment reforming him or her. In the following I elaborate on the thinking surrounding the various sanctions and their equivalent institutions.2 This will serve to show how widespread the idea of resocialising and individualised treatment of criminals was from the 1930s onwards. The young offenders’ institution serves as the starting point. The idea of this type of sanction for offenders between 15 and 21 years stemmed from the 1895 Report on Child Rearing and the 1905 Act on the Treatment of Criminal and Neglected Children and Young People, the main idea of which was that children should be educated rather than punished (inspiration was drawn from the British Borstal system). The basis for this was the assumption that children could actually be educated, that they had not yet developed into hardened criminals, and it was still possible, through appropriate interventions, to set them on the right path.3 Despite its name, the young offenders’ institution was not meant as a form of punishment.4 It was an educational and training institution that placed ‘special emphasis on the prisoner’s mental and physical development through mental and physical education and open-air work, as well as training in a skill so that he may earn a living upon his release’ (Criminal Code of 1930: Section 43, 2). The rehabilitating or resocialising – but, above all, normalising – aim was thus clear. This was a relatively indefinite sanction because ‘the duration is not determined in advance on the basis of the gravity of the crime [. . .] but depends on the possibility of education and learning. Only the minimum time and maximum time are known in advance’ – namely one and (under normal circumstances) three years, respectively (Report 1959: 68). Decisions on release were to be taken by the Prison Board (see Criminal Code of 1930: Section 42; Hansen 1952; Jensen 1941).5 The purpose of not laying down a specific period of time for the incarceration in advance was, of course, that the individual’s character determined how prolonged an education he needed before release could be considered. After the Criminal Code was adopted, a young offenders’ institution was established in the former manor house of Søbysøgaard. In line with the principle of individualisation, all available information about the prisoner was collected before they were sent to Søbysøgaard.6 This would not only form the basis of the specific measures applied in the institution but, when the time came to consider the prisoner’s release, it would also complement the information that had been gathered during the incarceration. Release was on a probationary basis, which usually required the prisoner to stay out of crime for two years and submit to supervision (Hansen 1952: 127).

The rise and fall of the treatment ideal 57

The next group of criminals, to whom specially adapted sanctions were applied, consisted of persistent recidivists, for whom ordinary punishment had proved fruitless. Recidivists were differentiated according to whether they presented a danger to society or not. The so-called difficult but harmless – Goll (1932: 50) called them ‘socially second rate’ – were to be sent to the workhouse. ‘The workhouse is designed to be [. . .] a form of internment that is independent of the gravity of the offence and solely directed against an antisocial personality’ (Aude-Hansen 1952b: 187). The State Workhouse at Sdr. Omme was set up for this purpose and treated its inmates more leniently than inmates in prisons. Since this group of criminals had largely been written off in terms of hope of rehabilitation – the sanction was, quite simply, internment – their stay in the workhouse was purely labour-oriented (agriculture, horticulture, etc.), with less importance attributed to education. Dangerous recidivists, on the other hand, were sentenced to preventive detention which, in practice, was spent in a section of the state prison in Horsens. These individuals were described as: morally depraved, antisocial individuals who commit a staggering number of crimes compared to the, as a rule, few and small crimes of which the Court can manage to convict them. It is likely that no sooner are they released than they start to execute plans hatched in prison with like-minded individuals. (Goll 1932: 50) The form of treatment to be imposed during preventive detention was similar to the workhouse. However, account was to be taken of the greater danger posed by these prisoners (see also Borgsmidt-Hansen 1943: 227 ff.). The next group of offenders for whom the Criminal Code of 1930 introduced special sanctions was drunks or so-called chronic alcoholics. More precisely, these were ‘criminals for whom alcohol is the actual causa efficiens of the crime, because they only commit their crimes when under the influence of alcohol and would not otherwise think of doing so’ (Goll 1932: 46, italics in the original). These criminal alcoholics could be banned from buying or drinking alcohol for a certain period. They could also be sent to a rehabilitation centre for drunkards (Sdr. Omme or Nordby on Fanø) for a more or less indefinite period. The purpose of these institutions was ‘through barring access to liquor, through work and moral influence, to wean inmates from their drunkenness, so that they are in a position to lead a sober and decent life’ (Fængselsvæsenets Betjentskole 1949: 1).7 The idea of rehabilitation centres for alcoholics drew directly on Geill’s recommendations. The final group addressed in the Criminal Code of 1930 was psychopaths. As mentioned previously, the law distinguished between ordinary punishment (imprisonment, fine, simple detention), and special punishment (psychopath prison) and custody. Immediately after the adoption of the Act, the Ministry

58 Foucault, crime and power

of Justice set up a Committee to consider the practicalities of special punishments and detention, i.e. the institutional foundations for the application of Section 17, 2 and Section 17, 70. The Committee, which included August Goll (Chairman) and August Wimmer, delivered its report the following year (Report 1931). The discussions that led to the recommendations for what the Report’s title refers to as ‘Special institutions for Psychopaths’ began with an assessment of ‘what human material will be treated’ (Report 1931: 4). The categories were as follows: The group that the Committee had to deal with thereafter in particular is the so-called psychopaths (degenerates), i.e. individuals who cannot be placed in the categories mentally ill or mentally deficient, who deviate from the norm by virtue of the fact that one or, as a rule, several characteristics appear in enlarged or reduced – in short, distorted – form, and express themselves in abnormal reactions. If the court deems the psychopath receptive to treatment, this will differ from ordinary methods of punishment, and he will be placed in a special psychopath institution (psychopath prison, cf. Section 17, 2). If the courts consider that what is needed is not punishment but preventative detention, the psychopath will be sent to the ‘special’ detention units specified in Section 70 of the Act. (Report 1931: 5, italics in the original) This categorisation highlighted two factors in particular. First, the purpose of the special institutions was a reactive treatment of criminal individuals. Second, the recommendation clearly drew on ideas that had long been promoted in Denmark by Geill, Wimmer, etc. This is underlined by the Committee’s approach to the concept of psychopathy.8 Although the Report acknowledged that it was extremely difficult to give an accurate, positive definition of the term ‘psychopath’, an attempt – based largely on Wimmer’s work – was nevertheless made to classify the major groups. According to the Committee, the group comprising psychopaths includes ‘the constitutionally exalted’, ‘the imbalanced’, those with a ‘closed emotional life’, ‘the emotionless’ and finally ‘truly morally defective psychopaths’. About the latter, it was noted that ‘this type of psychopath, who surely comes closest to Lombroso’s “born criminal”, is – with their often clear-headed egoism, their affinity for cold calculation and cynical exploitation of opportunities – of particular criminological interest’ (Report 1931: 7). The Report’s discursive horizon was thus quite clear. With regard to the institutional implementation of the specific provisions of the Criminal Code, the Committee recommended the following for the two special institutions. In the case of the psychopath prison – in other words, the institution for psychopaths receptive to punishment – the basic principle was ‘a relatively free treatment of the prisoners within the walls and, as a

The rise and fall of the treatment ideal 59

result of this, a thorough individualisation, so that the discipline is to some extent tailored to each prisoner’s mental-physical peculiarity and ability to understand’ (Report 1931: 14, italics in the original). It was therefore crucial that the treatment – carried out by psychiatrically trained doctors – was individualised. The Committee went into great detail about all facets of the institution’s work, including the relationship between the prison governor, the wardens and the doctors, the weekly officer meetings at which individual prisoners were discussed, the institution’s staff, the general principles for treatment of prisoners, classifying prisoners into groups, forced labour, teaching, release, etc.9 The Committee also advocated a maximum of three years in psychopath prison – beyond that, the prisoner could no longer be expected to be receptive to the treatment. With regard to detention centres, the Committee based its thinking on the measures that had already been put into effect with the 1925 Internment Act, including the preventive detention unit set up within the Sundholm workhouse. The Committee thought, however, that the group of people that could be incarcerated under the Internment Act was wider than the group of criminals covered by the Criminal Code, Section 70. Under the new rules, therefore, it might be expected that a large proportion of those who were the target group for the Internment Act would be placed in the psychopath prison, whereas the detention centres could be reserved for clearly psychopathic criminals. An important implication of this assumption was that the Committee demanded that detention centres, unlike the psychopath prison (and the preventive detention section at Sundholm) should be headed by a psychiatrist rather than a warden (Report 1931: 19). The psychiatric perspective was to be at the centre. Treating the ‘untreatable’: towards a clinical criminology On 30 March 1935, Herstedvester was taken into use as both a prison and detention centre for psychopaths. In 1955, the former was moved to Horsens, after which Herstedvester served exclusively as a detention centre for psychopaths.10 In 1942, Dr Georg Kristoffer Stürup MD was appointed Head of Treatment at Herstedvester. In the words of Knud Waaben, Stürup was ‘the most prominent [representative] [. . .] of psychiatric criminology research’ (1983: i). The following section will therefore analyse his work in depth as an illustration of the psychiatric treatment ideal in its purest form. Stürup made a fundamental break with the previous idea of incorrigible criminals, which was inherent in the idea of the hard-labour prison (tugthus), as propounded by the likes of Ferri and Liszt and featured in early Danish criminology. During his training as a psychiatrist, Stürup had learned that certain groups of people, such as those for whom he would later be responsible in Herstedvester, could not be treated. There appeared, therefore, to be limits

60 Foucault, crime and power

to psychiatry’s reach, which is why he initially did not expect to have to treat but, rather, classify, the detainees (Stürup 1968a: 13–14). At the same time, however, the psychiatry of the day was epitomised by great optimism, which started to challenge the limits of the possible (1968a: 1). This optimistic spirit would come to infuse Stürup’s work, as he quickly adopted (and believed he could document) the view that detained criminal psychopaths, who were previously deemed incorrigible, could actually benefit from a particular form of treatment. The objective was reflected in the paradoxical title of his main work in English: Treating the ‘Untreatable’ (1968a), which referred to the previous conception of crime by means of the quotation marks. Stürup named his approach clinical criminology, clearly indicating that he had adopted a medical approach to the issue of crime. In ‘Basic Concepts for a Clinical Criminology’ (1960b), he wrote: By clinic we mean that part of medical science that deals with the study and description of disease phenomena, as they manifest themselves in the sickbed, i.e. in the course of the illness. The diagnosis, which is the determination of the precise nature of a case of illness, is the basis for a classification. The ideal diagnosis articulates concisely a more or less clearly defined clinical picture, in a manner that tells other medical professionals something essential about the treatment, resources and opportunities that will be involved in the relationship with this patient. [. . .] The clinical criminologist goes through the same considerations when faced with a criminal. (1960b: 3–4; see also 1956) The problematisation of crime had thus moved even further away from the previous metaphysics. This clinical basis meant that crime was considered, even more so than previously, from a rational-scientific – and in particular, pathological – perspective. The appealing part of this radicalisation of the previous challenge to metaphysics was obvious: by transplanting the medical clinic into the field of crime, the path was suddenly paved for a definitive solution to society’s crime problems. At the core of Stürup’s works were specific, often quite lengthy, reports on individuals who had undergone treatment at Herstedvester. These reports, or biographies, served primarily to examine whether the criminal had been sentenced to preventive detention because of their first crime (so-called starter criminals), or whether they should be classified as chronic criminal – not in the sense of incurable, but long-term. In other words, had the criminal embarked upon a long criminal career? Unlike a purely legal review of crimes, Stürup’s biographies revealed as many aspects of the individual’s life story as possible. The main point in these accounts was not whether the person had committed a criminal offence at this or that particular point in time. Nor were they based on fundamental support for, for example, the idea of a free

The rise and fall of the treatment ideal 61

will or a purely biological idea of degenerate/born criminals. Nor did they ‘support some school of psychiatry or other’ (1951: 2). Rather, the focus was on recording family relationships, employment status, time spent in institutions, intellectual capacity, treatment at Herstedvester and myriad other details, many of them ‘seemingly trivial circumstances’, that provided a comprehensive and cumulative overall picture of the individual (1960b: 7). Although his focus was consistently on the potential psychiatric interpretation and significance of specific events, Stürup was, in his general theoretical reflections, eager to emphasise the importance of a balanced view: The underlying biological disorders, the psychological deviations from the average, what we call the character-related deficiency, are all just one side of the problem. These people’s whole cultural situation, their social development, their entire lives, as they have developed from the early years have, to an equally high degree, helped to determine the treatment. [. . .] [It is not about] their constitution or the environment but about both elements, both [are] equally important for the evolving personality, which is a function of both, a dynamic process, not something static. (1951: 240, 241) With these biographies, Stürup aimed to promote reflection on theoretically based practice designed to inspire ‘systematic scientific clinical-criminological research’ (1959: 4) and/or – in the case of his English publications – to ‘stimulate institutions in other countries to make experiments like ours’ (1968b: x). However, the descriptions also contained many direct prescriptions. For example, summarising Herstedvester’s treatment of six specific individuals, Stürup admitted that the work of the institution was ‘imperfect’ (1951: 239). He attributed this to the fact that the treatment had not begun until very late. His recommendation was obvious: ‘Individuals like these should be subject to systematic treatment much earlier and more extensively than has been the case’ (1951: 239). The focus on the biographies also marked a theoretical shift. Stürup was not interested in classifying offenders according to types of crimes. His hope was that observation of the detainee would eventually be able to identify the ‘similarities in pictures of development’ that could be used in the individual treatment (1972: 13). How can the treatment programme championed by Stürup, which was said to be epitomised by a ‘realistic, rational, and humane general approach’ (1968a: 245), be more precisely characterised?11 A first characteristic is clear from the title of one of Stürup’s early books, Krogede skæbener (Crooked Fates, 1951), which was published privately.12 The title was a reference to the group in which Stürup was interested – namely, people whose life paths had progressed in an uneven manner relative to the norm. In several of his later publications, this imagery was more tangibly expressed in a way

62 Foucault, crime and power

Figure 3.1 Stürup’s tree

that would come to characterise his approach to treatment: a tree with an unusually crooked trunk, which is supported by a crutch, thereby ensuring beautiful, lush growth – despite the fact that the trunk cannot be straightened (see Figure 3.1). The picture was more than a mere curiosity. In Treating the ‘Untreatable’, the figure – and the general rationality in Stürup’s work – were explained as follows: The symbol of the twisted tree is based on a sketch by Dr. Stürup of a tree he saw in England in the 1940s. The crutch suggests the support that the Herstedvester Detention Centre tries to give to the twisted personalities of its inmates so that they can become strong and valuable members of society. (1968a: v) It is interesting to note that Stürup was far from the first to deploy this image for treatment. In Discipline and Punish, Foucault uses as a similar symbol, that dates back to Nicolas Andry’s work in 1749, when talking about putting individuals on the right path through disciplinary measures (see Figure 3.2). According to Foucault’s analysis, the figure of the supported tree encapsulates the essence of the rationality of the disciplinary form of power, which is not about using negative power to prevent acts, but about positively creating good and docile citizens. In the disciplinary form of power, it is a crucial assumption that everybody is actually capable of being corrected, put on the right path, disciplined – in short, cured of the problem from which they suffer and that puts them at odds with normality. For Stürup, the project was therefore to discipline psychopaths, to place them in a comprehensive programme in order, through correction of their inner self, to transform them into law-abiding, normal citizens. However, in parallel with this disciplinary approach, Stürup also argued for a higher degree of governmental and self-technological aspects of treatment.

The rise and fall of the treatment ideal 63

Figure 3.2 Foucault’s (and Nicolas Andry’s) image of discipline

Even though the tree needs the crutch to stop it collapsing, its subsequent development depends, of course, on the tree’s own strength. Transposed to the treatment situation, the emphasis was, on the one hand, on the fact that the criminal psychopath needed help. The treatment therefore had to come from the outside. On the other hand, if the goal was successful treatment and the detainee being able to live a crime-free life, then external intervention, alone, was inadequate. The criminal had to be actively involved in their own treatment: The patient had to feel that he himself was carrying the main load in the treatment, and in reality he also has to do just that. It is his basic personal and emotional attitude towards society that has to be changed, and this change must grow ‘from within’, it cannot be imposed. (1951: 242)13 Two factors were therefore considered essential for the treatment: the indefinite nature of it – the personal growth of the detainee was to be encouraged

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but not forced – and a close relationship between the therapist and the person being treated, with the former attributed a constitutive impact on the latter’s self-development.14 Over time, Stürup developed the concept of integrating individualising growth therapy to describe the treatment (see e.g. 1968a: 19 ff.; 1972: 197 ff.). This form of therapy consisted of a range of components that, when used together in an integrated manner, would lead the detainee to a crime-free life. One focal point for the treatment, according to Stürup, was the daily conferences held by the institution’s staff to discuss pressing issues, the detainees’ development, etc. At these meetings, results and observations from the various professions – doctors, psychiatrists, teachers, etc. – were brought together in an interdisciplinary environment. The overall effort was co-ordinated, and can be divided into four main elements (1968a: 19–20, 200–1). The first element consisted of adequate physical security measures, which were supposed to provide a safe and secure atmosphere for the treatment. For example, Stürup (1972: 200) attributed to aesthetic landscaping and cosy rooms for the inmates an indirect effect as elements of the overall treatment. The physical environment was thought to be of ‘great importance’ for the treatment at Herstedvester, and the number of detainees was limited accordingly (1959: 4). The close co-operation between staff and inmates, which Stürup considered essential for treatment, would thus be ‘almost impossible in large institutions’ (1968a: 16). The architecture acted as a double technology in the treatment work, namely as the creator of a generally pleasant and warm environment and as a means by which to bring therapists and those treated close to each other – in other words, as a condition for intimate interaction between staff and detainee. The second element of the treatment was psychotherapy, ‘which directly aims to develop emotional resources’ (1952: 9).15 Early on, Stürup drew attention to the fact that a decidedly psychiatric-psychological treatment of the individual criminal could not commence until certain conditions were met. The conditions for effective therapy were, as mentioned earlier, that the detainees themselves took responsibility for their own personal development. The detainee therefore first had to be brought to recognise his need for help and to want this ‘help for self-help’ (1959: 55). Stürup (1952: 5) spoke therefore of a ‘re-education or maturation phase’ in which the person was to become ripe for psychotherapy. This phase involved education, including job training, teaching, study groups, encouragement to work in their spare time, etc. As the criminal gradually matured, gained confidence in the staff and developed a desire to work on his problems, the actual psychotherapeutic phase could begin. Anamnestic analysis, as conducted at Herstedvester, attracted particular attention. According to Stürup and several of his colleagues, it should form the basis for the treatment of criminal psychopaths. Although inspired by Carl G. Jung’s analytical psychology, this form of analysis was not based on dream interpretation and association tests. Rather,

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anamnesis was a method in which the inmate, on the basis of current problematic/emotional situations, would tell the therapist about previous similar incidents and thereby identify patterns in the way he handles specific problems.16 In other words, the patient would be helped to understand the way he acts in certain stressful situations and therefore recognise the factors in himself that required processing so that similar situations in the future could be handled in accordance with social norms and laws: ‘One of the aims of this therapeutic method is to acquaint the inmate with his patterns of reactions, then to get him to realize the possibility of change, and sometimes to uncover the etiological process’ (1968a: 85). Such recognition reflected the criminal’s ‘growth’. From a technical and theoretical-analytical perspective, the anamnestic analysis was not a random method among a number of others, nor a random supplement to existing approaches to the crime problem. On the contrary, anamnesis summarised the shift in the governmental rationality marked by the new treatment ideal for which Stürup was a prominent representative. In Stürup’s own (retrospective) words: The anamnestic analysis assumed its special theoretical importance because it helped to draw our interest away from the person as the entity affected or the person who, thanks to his or her personal peculiarities, became a criminal. Our concept of personality started to break down and we focussed on the interaction between a situation that stimulated certain facets of the personality and vice versa. Consequently we gradually came to see this field as a whole. (1972: 31) This consistent focus on anamnesis, therefore, laid the groundwork for a showdown with both the idea of a hereditary-constitutional predisposition to crime and the idea that the social environment yielded critical influence on criminal behaviour (a view which, as will be seen below, started to play a significant role in the years that followed). Faced with these positions, Stürup shifted his focus to the dynamic interaction between emotional situations and uncontrolled personality reactions, and to the individual’s potential to act (based on reflexive self-technological work) in a law-abiding fashion in such situations. The third element of the treatment strategy consisted of somatic therapy, e.g. physiotherapy and massage for relaxation. However, more drastic measures were also considered. Stürup (1952: 15–16) discussed the use of drug therapy as a means of opening some patients up to psychotherapy (on the use of LSD, see 1968a: 98–9). Hormonal therapy was also proposed for sexual ‘fixations (including perversions)’ (Hoeck-Gradenwitz 1961: 129). Stürup even discussed the use of plastic surgery and lobotomy. In Crooked Fates, he recounted the experience of a person who, by virtue of lobotomy, had changed

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from a ‘chronic criminal and explosive enemy of society’ to a ‘stable worker’, yet he warned against making too much of this success story: ‘one must be sure of having tried all proven reasonable options before resorting to the surgeon’ (1951: 199, 238). He was more supportive of castration as an element in the treatment of sex offenders in custody. In this instance, Stürup believed that, in serious cases, surgery could help the criminal by freeing him from his urges. Thus, it was claimed, the alleged offender could better handle situations in which he had previously lost control (1968b: 17, 55). Castration would help the individual on his path towards a crime-free future – and it would, of course, also be of benefit to society.17 Strictly speaking, by prescribing the regulation of the individual’s biological constitution and fertility for the protection of society, Stürup’s argument was a eugenic one. The fourth and final element in the treatment advocated by Stürup can be summarised under the heading rehabilitation. This involved several aspects of the above-mentioned treatment elements to which rehabilitative effects were attributed, for example, work training (to inculcate in the inmates the ability to engage in normal work) and psychotherapy (aimed at changing the individual’s attitude and handling of interpersonal situations). The rehabilitation also included an important element of collaboration with the institution’s welfare officers, both while at the institution and during any (temporary) release. Stürup summarised the many roles of the welfare officer as follows: The social aide assists the parolee to renew family relations, and to readjust to a social group, helps him to identify and avoid new criminal situations, and provides him with social support. Sometimes he needs continued help for years to find jobs and lodgings. In actual situations the social aide will often be engaged in more or less psychotherapeutical activities. (1968a: 19) It should be emphasised that release was always on licence and on special terms. As such, Stürup (1972: 206) considered it part of the therapy (the outpatient treatment phase), rather than the culmination of the treatment.18 This also meant, of course, that the exercise of power did not cease on release either. Rather, it assumed new forms, in which the regulation of criminals’ actions was not tied to the institution, but in which the released person’s whole life and movements were conditioned by the threat of renewed incarceration. I have discussed Stürup’s programme as if it were a single entity, and it may sound as if there are no internal changes and clarifications. This is, of course, only the case to a limited extent. There is no doubt that it took time for what Stürup, at Herstedvester’s 25th anniversary, referred to as ‘the contours of a new discipline’ (1960a: 1) – namely, clinical criminology – to evolve into a clear programme. The main outline may have been sketched

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very early on, but the details underwent steady refinement. The programme was constantly expanded with new techniques that were believed to contribute to the treatment.19 However, at a crucial point, a significant shift can be observed in Stürup. In his later writings – which coincided with the treatment ideal coming under increasing pressure, as will be seen below – Stürup began to emphasise that the treatment could not be expected to lead to a definitive cure for the criminal psychopath. Cure could not, therefore, be the success criterion for treatment. In Stürup’s own words, ‘I never say that I cure psychopaths; I do claim, however, that during their stay in Herstedvester they have been helped to become nicer psychopaths’ (1968a: 2). The aim of the treatment was no longer identical to the disciplinary power’s principle concern, i.e. curing the criminal’s inner constitution by changing the psychopath’s ‘personal, emotional basic attitude toward society’ (1951: 242). Rather, it was about accepting that the criminal psychopath was basically incurable, but nonetheless improvable, as it was claimed that their conduct could be corrected. It is worth mentioning that although Stürup was the leading proponent of the treatment ideal, the idea of employing a variety of different techniques for the therapeutic treatment of criminals did, in fact, attract wide-ranging support. This was also true in areas that were not directly related to the treatment of psychopaths, but which touched upon a wide range of issues related to crime. In the context of this book, it is sufficient to refer to Stürup’s (1949) own recommendation of outpatient treatment for alcoholics and Møller and Svendsen’s (1950) recommendation of psychiatric assistance with the resocialising supervision of offenders. The aspect of the treatment ideal upon which Stürup had a decisive influence is perhaps best understood by comparison with the nineteenthcentury conception of the improvement of criminals. The idea of the house of correction, as shown above, was based on moral-religious improvement through individualisation and isolation. The isolation served to protect the inmate against bad influences from fellow inmates and to give him peace to contemplate his misdeeds and adopt the correct moral behaviour. This was supported by individualising and normalising techniques, which – based on the individual’s biography – offered moral and religious guidance. Stürup’s programme differed in several respects from this early conception of reform or rehabilitation. First and foremost, the focal point was no longer the individual’s free will, so the objective could not be the moral improvement of the inmate. On the contrary, the primary circle of individuals targeted by Stürup consisted of those considered fundamentally sick. In other words, people whose abnormality the therapy might not necessarily cure, but who would be better equipped to cope with their pathological sides in a crime-free manner. In addition, the treatment was not based on (communicative) isolation. Instead, it was mostly based on communication and interpersonal relationships

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between the detainee and the staff, and between the detainees themselves (e.g. in group therapy). Finally, where the nineteenth-century guidance had a positivised basis in the prisoners’ short biographies, this individualising aspect was now greatly expanded, endowed with a scientific psychiatric methodology and became central to the treatment. Although the objective may have been the same as in the nineteenth century – to transform criminals into law-abiding citizens – the tacticaltechnical approach was crucially different. Gone were the metaphysics, replaced by the rational-scientific method. This method of treatment had a clinical, rather than religious, basis and continually expanded the boundaries of what had to be known about an individual in order to solve the problem of crime. Any information that could be provided about the detainee and his former life – even ‘seemingly trivial circumstances’ – served as a cog in the treatment machinery. In principle, therefore, the individualisation knew no limits, neither factually nor temporally, as the detention could be indefinite and the treatment could continue after release. Drawing on German sociologist Niklas Luhmann’s systems theory, the concept of hyperinclusion seems to serve as an adequate basis for understanding Stürup’s treatment programme (Luhmann 1995; see also Göbel and Schmidt 1998). The hyperinclusion is reflected in the fact that every aspect of the detainee’s everyday life in the institution was regulated according to treatment needs. All aspects of everyday life – whether they concerned job training or leisure pursuits, role playing or decoration of the detainee’s own rooms – were observed through a medical lens, based on a distinction between ill/well (Luhmann 1990). In short, everything was subsumed under the medical view, just as in the nineteenthcentury houses of correction the prisoners’ lives were subsumed under moral and religious communication. The treatment ideal also marked a change in the exercise of power. Stürup thought he could treat criminal psychopaths, who were previously considered incorrigible and, as a result, the foundation was laid for a powerful new intervention. The new subject, the deeply pathological criminal with a deficient character, could not be put back on the right path through simple religious care of the soul. Nor was it a matter of transferring curative treatment programmes such as those used for alcoholics. Rather, it was about considering the criminal psychopath as an individual with certain potential, which may have been subjugated throughout life but which could, under the right conditions, become relevant again. The crucial conditions were the individual’s acknowledgement of his own problems and his expressed desire to change his nature. The treatment was, as mentioned previously, to support the individual in terms of self-realisation/expressing a desire for help and then, through therapy, help him to govern himself properly. In Foucault’s terms, this treatment strategy could be construed as a game between government and technologies of the self: Stürup’s treatment ideal focused on governing the detainee in order that he might govern himself. It is precisely this external

The rise and fall of the treatment ideal 69

governance of the individual’s self-relations that Stürup summed up with his image of the tree and the crutch. The sociological supplement The treatment ideal, which was consolidated by the Criminal Code of 1930, clarified, on an empirical basis, the methods for a rational, individualised treatment of criminals. The clinical-criminological approach may have been dominant, and great potential attributed to it, but it was not the only perspective on crime. During roughly the same period, a comprehensive problematisation of crime emerged that centred on the social causes, and as such presented a challenge to the dominant truth regime. Since Ferri, Lombroso, Liszt and, not least, of course, the French school, it had been argued that social conditions must be included at the very least as a supplement to biological and psychological factors – an argument that also found its way into the Danish debate, as is clear in the work of, for example, Geill and Wimmer. Still, the sociological perspective languished in the shadow of criminal-biological and (in particular) psychological approaches for a long time. This lack of prioritisation was gradually rectified by a growing acceptance of adherence to criminal sociology, which gained an increasingly firm scholarly footing. The shift that was established by this questioned the governmental rationality of the responses to crime, above all in relation to keeping psychopaths in protective detention. If the causes of crime stemmed from social conditions to a greater extent than previously thought, then the response to crime needed to change tendentially in order to intervene in society rather than in the personality of the individual. A clear weighting of social conditions in the understanding of crime is found in Karl O. Christiansen who, in 1967, became the first Danish Professor of Criminology in the Department of Criminology set up by the University of Copenhagen in 1957. Christiansen had adopted a sociological perspective as far back as the 1930s in his thesis Hvilket bidrag yder sociologien til den etiske diskussion om forbrydelse og straf? (What Contribution Does Sociology Make to the Ethical Discussion of Crime and Punishment?, 1937), in which Durkheim and his disciple, Paul Fauconnet, played an important role. Another characteristic example from Christiansen’s early work is ‘Forbryderen og hans milieu’ (‘The criminal and his milieu’, 1943), which, as its title indicates, explicitly referred to the tension between factors internal and external to the individual. The study analysed 126 recidivists in the state prison at Vridsløselille in 1940–41. More precisely, Christiansen sought to illustrate the link between, on the one hand, the offender’s personality and external social conditions and, on the other, whether the person concerned could be described as acutely or chronically criminal (the former being subjected to less harsh punishment than the latter as a rule). With regard to the personality part, Christiansen relied on a mental examination of the prisoners, in which a third were

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characterised as retards, morons, psychotic or psychopaths. As far as the external social factors are concerned – i.e. the more distinct sociological part – he operated on the basis of an evaluation of personal upbringing (dysfunctional families, unfortunate background, etc.), working situation (training, unemployment, etc.), financial circumstances, marital relationship and geographical environment (frequent changes, particularly moving home, etc.). The analysis ended up concluding that: for acute criminals, social inequality seems to be the most important criminogenic factor. Approximately half of chronic criminals suffer from both mental and social defects – and for the other half, social inequality is the dominant factor that conditions their criminality. (1943: 62, italics in the original) The crucial point here is the emphasis on the social dimension’s independent significance for the incidence of crime, which was analysed on a par with the nature of the individual’s criminal character. The reference to, and revealing of, social factors was not intended as a rejection of, for example, Stürup’s project and the whole personality-fixated treatment ideal. Christiansen adopted the treatment ideal, but simply extended the reach of the criminologically inspired intervention to also (and more consistently) include social conditions.20 He made a vital contribution to the debate in Denmark by arguing that the study of what he termed crime factors, i.e. all the factors that determine crime, had to include factors both internal and external to the individual. The most important example of Christiansen’s sociological approach is his higher doctorate dissertation, which consisted of two studies of treason during the German occupation (i.e. 1940–45). The purpose of the first of these – Mandlige landssvigere i Danmark under besættelsen (Male Traitors in Denmark during the Occupation, 1950) – was ‘to provide a description of the male traitors’ crimes and a social-psychological explanation of their environmental conditions [. . .] and a – not very deep – evaluation of their physical and mental health’ (1950: 12). While the analysis of health included information about any sexually transmitted diseases from which the traitors suffered, the mapping of social conditions included a study of their social class. In contrast to the primarily descriptive character of that study, the sociological perspective was refined somewhat in Landssvigerkriminaliteten is sociologisk belysning (Crimes of Treason in a Sociological Light, 1955), which attributed no importance to the criminals’ physical and mental conditions. The study was of the purely sociological factors that were believed to form the basis for the crime of treason – again, treated on the basis of examinations of occupational and financial circumstances, class, educational background, etc. A discussion of Christiansen’s contribution must also mention his unfinished project for a comprehensive study of twins, aimed at examining the

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relationship between heritage and the environment with regard to mental abnormality and alcoholism (see e.g. 1956; 1986). This project, too, was all about not taking individual-fixated explanations of crime for granted but, rather, ensuring that the study of crime’s causes considered social conditions – a claim underlined by a review of existing studies of twins, in which Christiansen concluded that ‘the hitherto conducted more exact research [can] not be said at any point to have led to conclusive evidence of the domination of hereditary factors over environmental factors in the genesis of crime’ (Hurwitz and Christiansen 1968: 130). Stephan Hurwitz also emphasised the importance of the sociological angle on crime. Hurwitz, who was appointed Professor of Penal Law at the University of Copenhagen in 1942 – but preferred the broader concept of ‘criminal law’ as a designation for the discipline (Hurwitz 1952) – was, among other things, the author of the first real textbook on criminology in Danish, Kriminologi (Criminology, 1948). The book consisted of a critical review of existing theories and studies within the field, but the perspective was not confined to the single criminal individual. On the contrary, Hurwitz distinguished between two main parts of criminology, which he reviewed on an equal footing, namely criminal biology and criminal sociology. The book contained descriptions of hereditary factors and of criminal-anthropological and criminal-psychological studies, as well as of general economic factors, upbringing, etc. In the later, greatly expanded, third edition of the book, edited by Karl O. Christiansen, the sociological dimension was attributed even greater importance. For example, in the chapter ‘The History of Sociology’, a section was added on ‘sociologically oriented research’, primarily referencing Tarde, Durkheim and Fauconnet (Hurwitz and Christiansen 1968: 49–51).21 This was both a reflection of Christiansen’s influence and of the generally increasing recognition of early contributions to the debate by criminal sociology. Although the sociological perspective was now more closely incorporated than previously, this did not represent an actual rejection of the psychiatricbiological basis for the treatment ideal. However, it was gradually acknowledged that the social aspects had to be added as a supplement to more constitutional or personality-oriented positions. Both sides were therefore attributed importance and it was claimed that they existed in a complex interrelationship. The pendulum swings: criticism of the treatment ideal It would not be long, however, before the criminal-sociological angle was not just a supplement, but a genuine alternative to the psychiatric-biological approach. Preben Wolf and Erik Høgh were among those to abandon the personality-fixated perception of crime and its dominant concept of treatment. This was particularly evident in their jointly authored book, Kriminalitet i

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velfærdssamfundet (Crime in the Welfare State, 1966). The title itself implies that new times were coming. Contrary to the titles of previous books that had linked crime with society by suggesting an opposition between the two,22 Wolf and Høgh claimed that the phenomenon of crime is created in society – and in particular, by society. The new tone was struck on the first few pages: ‘it is society which, through its class divisions and the unequal distribution of wealth, creates crime. That is, the criminal really cannot “help” being criminal’ (Wolf and Høgh 1966: 10). Consequently, the early-twentieth-century antagonistic opposition between the criminal individual and society was gone. Also seemingly on the decline was (in addition, once again, to the idea of free will, already problematised) the whole discussion of responsibility, as crime was now seen as a product of social differences, not embedded in a question of the attribution of legal responsibility or the likelihood of reform through punishment. According to Wolf and Høgh, the social differences were reflected in the fact that ‘it is difficult to find differences between criminals and non-criminals other than that criminals belong to the lower social strata and non-criminals to the higher social strata’ (1966: 10).23 This statement was also in stark contrast to the previous Danish conceptions of crime, in which criminals were distinguished on biological, psychiatric and anthropological bases as degenerates, psychopaths, etc. This whole idea that the causes of crime are to be found in the offenders’ deficient mental or biological nature was now replaced with a decidedly social perspective which focused, in particular, on the interrelationship between social stratification and crime. In a consistent extension of this, the authors asserted that the best way to fight crime was through ‘an effective cultural, welfare and social policy’, i.e. via the regulation of social conditions (1966: 10). In other words, the war on crime should not target antisocial individuals but should, instead, take the form of a welfare-policy intervention in social affairs/society itself. This expressly social perspective, however, was not the only defining feature of Wolf and Høgh’s book. Equally important was the authors’ scepticism concerning a number of studies of the effectiveness of punishment and treatment when it came to reducing recidivism. Wolf and Høgh questioned whether the positive effects of punishment and treatment could be demonstrated. In this, they joined Swedish psychiatrist Karl-Erik Törnquist, who reached a similar conclusion about psychiatric treatment in Denmark, the Netherlands and the UK: Strictly speaking, we know precisely nothing for sure – nothing that stands up to critical study – with one possible exception. The exception comes from Stürup. He has proven, with a high degree of statistical accuracy, that castration of certain recidivists, dangerous sex criminals, strongly reduces the risk of relapse into this type of crime. That is all. (Törnquist, cited in Wolf and Høgh 1966: 123)

The rise and fall of the treatment ideal 73

Apart from castration, treatment strategies, including Stürup’s, did not seem to have made a definitive impression. Wolf and Høgh therefore opined that sanctions for criminals did not so much serve to lead these individuals away from crime as to maintain the system of sanctions itself.24 They raised critical objections to the idea of solving the crime problem through punishment and treatment and set the scene for a showdown with the whole of Stürup’s therapeutic treatment programme, which, they claimed, had still not proved its effectiveness. This critical attitude towards treatment’s ability to reduce recidivism was particularly marked in the 1960s. In particular, indefinite treatment came under fire. However, it was not only the treatment that was attacked. Imprisonment, which was intended as an alternative to treatment, was challenged too.25 Even though this criticism was largely based on sociological insights, it also drew on legal and psychiatric arguments. On the legal side, Knud Kirchheiner, public prosecutor at the Supreme Court, had already problematised indefinite treatment, in 1951. Based on a series of real-life examples of cases in which individuals had been sentenced to indefinite detention, he highlighted the tension between legal proportionality and medical claims about indefinite treatment. Kirchheiner’s concerns – which were shared by a number of defence lawyers – were many, including that the indefinite element in itself was an ‘extremely serious burden’ on the detainee, that it imposed ‘an additional “punishment”’ and that, judging by recidivism rates, there was no documentation that indefinite treatment worked at all (1951: 200). However, what he found particularly problematic was the fact that this form of treatment gave doctors the power to make a number of extremely intrusive decisions about the detainees without any judicial supervision. Indefinite treatment was also questioned within psychiatry. Jan Sachs had identified positive results with time-limited psychopath prisons at the special institution in Horsens, where he served as senior consultant, after a period as junior consultant at Herstedvester (Sachs 1960). These results encouraged him to be critical of the indefinite element, which he thought had counterproductive effects on the treatment situation. He claimed that, often, the indefinite length of the sanction would put the criminal under pressure to request that treatment be initiated but that this did not reflect the selfrealisation that was considered so vital to the success of the treatment. The criminal had to want the treatment himself – this desire must not be imposed from outside. In addition, Sachs argued, release on parole was an administratively burdensome procedure (written statements, contact with the family, guardian, etc.), which was not only time-consuming for the staff at the treatment institution, but also diverted attention from the treatment itself. If, on the other hand, the penalty had a clearly specified time limit, energy could be focused more directly on the treatment and the criminal’s desire for treatment was likely to be more genuine – both of which were allegedly important for the efficacy of the treatment.

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Despite these critical objections, Sachs did not reject indefinite detention in general. On the contrary, he stressed that, for many chronic criminals, it could be necessary not to impose fixed timescales. He also backed Stürup’s general treatment programme, recommending personality development through, inter alia, psychotherapy (Sachs 1963). In summary, however, Sachs thought that a group of those who would otherwise be placed in detention would be better placed in the psychopath prison for a time-limited programme of treatment (see also Waaben 1968: 136–7). This view was shared by Finn Tofte who, like Stürup, formulated a clinical criminology, but concluded that: years of medical experience with people in custody show that the indefinite time – which for dangerous criminals could perhaps be justified – for the vast majority of thieves is unfortunate in treatment terms, irrespective of the fact that the length of the time served has decreased slightly in recent years. (1967: 94, italics in the original) The various critiques did not go unchallenged, but provoked reactions from, among others, Stürup, who admitted that the Zeitgeist had started to turn against the treatment ideal – in particular, the idea of indefinite treatment for people who committed crimes for purposes of material gain.26 In the foreword to the book Berigelseskriminelle i Herstedvester (Thieves in Herstedvester, 1972), he felt the need to discuss the view that ‘indefinite custody is a malicious idea unworthy of human beings’ (1972: 13). Stürup stood firm on unlimited treatment, be it for theft or not, and once again invoked humanism in arguing his case. Although he acknowledged that the Herstedvester treatment was not necessarily an ingenious catch-all solution, and was only ‘at the beginning of an exploration of the criminal behaviour of individuals and of their complex causes’ (1969: 205), he still recommended the unlimited clinical approach: ‘This is more humane than stimulating pessimism’ (1972: 14). Despite Stürup’s persistent defence of the treatment ideal, change was on its way. This was highlighted by two reports in 1972. One of them, under Karl O. Christiansen, was commissioned to study the effects of indefinite detention, which it did through comparison with the use of special prisons and state prisons. The study concluded (with some reservations) that ‘it has not been possible to detect differences in effectiveness between the different types of treatment used on criminals found guilty of theft’ (Report 1972a: 309). In other words, it could not be documented that the detention of the group of people studied had a positive effect on reoffending rates compared with the work of the special prisons and ordinary prisons. This conclusion was the basis for the second Report, in which the Standing Committee on Criminal Matters conducted a general evaluation of the special criminal law

The rise and fall of the treatment ideal 75

measures (Report 1972c). Among other things, the work on the reports resulted in a recommendation to replace the existing Criminal Code provisions on detention – Section 65 on preventive detention and Section 70 on (psychopath) detention institutions – with a new, open-ended (in terms of time) category, simply called detention. Unlike psychopath detention, this was to be formulated without reference to abnormality and would only apply to the small group of criminals who represented a danger to people, not property. The same year as Stürup, again, argued for indefinite detention of thieves in Herstedvester (Stürup 1972), the critique of the detention of precisely this group of people was embedded in the Report, the recommendations from which were incorporated into an amendment to the Criminal Code in 1973 (see Act no. 320 of 13 June 1973). Garde has summarised the shift very elegantly: ‘He [Stürup] kept faith in an open-ended institutional detention as a prerequisite for successful treatment, and it seems symbolic that the year after his retirement in 1972, most open-ended measures were repealed’ (1999: 97). From abnormality to normality Since the breakthrough of the scientifically sanctioned problematisation of crime in Denmark in the early twentieth century, crime had been conceived as an abnormality that was linked to the offender. Within this discursive repertoire, the problem of crime coincided with the problem of a particular subject: the abnormal criminal individual. As the analysis above shows, the solutions proposed on the basis of this problematisation assumed many different forms. The prescriptions included sterilisation and eugenics (in the words of Foucault: state racism), measures against degenerate criminals, indefinite internment and individualised treatment of psychopaths, juvenile delinquents, etc. This second string, the treatment ideal, gained ground after the adoption of the Criminal Code of 1930. The idea was that at least part of the problem of crime could be handled on the basis of a disciplinary exercise of power, which – according to Stürup’s programme – could also be combined with a governmental management of the criminals’ self-management. This conception of crime, which was based on an idea of abnormal criminals and their (mostly state-initiated) treatment, met with ever-stronger criticism during the 1960s. The critique was expressed in political-legal terms in the 1973 Criminal Code, which not only restricted the group of individuals who could be punished by detention, but generally challenged the full range of special sanctions (young offenders’ prison, drunkard institutions, preventive custody, etc.) introduced by the 1930 Act. However, it was not just the legal basis that crumbled under the treatment ideal. Overall, the various critiques and theoretical trends – i.e. the criminal-sociological perspective on the social causes of crime, the evaluations of the effectiveness of the treatment of criminals (which was found to be not very successful), the legal critique of the

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treatment’s uncontrolled intervention against criminals and the psychiatric problematisation of unbridled enthusiasm for indefinite sanctions – pointed towards a reorientation of the crime question. In brief, the belief behind the treatment ideal – that the problem of crime could be solved by separating out specific groups of criminal individuals whose very core was to be worked on – came under fire. The new ideas that were gaining ground (especially, of course, criminal sociology) attacked the fundamental idea of abnormality and the classification of individuals according to their biological and mental dispositions towards crime. The killer blow in what was not only a discursive shift, but a decidedly epistemological overhaul, in which reality (in this case, the problem of crime) was observed from a whole new perspective, was dealt by Vagn Greve’s Kriminalitet som normalitet (Crime as Normality, 1972), the title of which neatly encapsulated the clash with the treatment ideal. The book presented a study of non-recorded crime in Denmark (specifically among conscripts), and showed that criminal behaviour was actually a normal occurrence, ‘and that the dichotomy between criminals and the law-abiding is therefore, from a criminological standpoint, meaningless’ (1972: 125). Although Greve did not believe that the study necessarily falsified criminal biology en bloc (although it probably did as a general theory) the result was quite clear. The study’s main conclusion – ‘[c]rime is not, as such, abnormal behaviour and criminals are not, as such, abnormal individuals’ (1972: 134) – had crucial power effects. The problematisation of the treatment ideal thus designated both a negative and positive movement. Negatively, it removed the foundation for an exercise of power based on the idea of fundamentally sick and abnormal individuals and their possible treatment. And, in a positive sense, this pathologising subjectification and the associated approaches to treatment based on discipline – and to some extent on techniques of the self – had to be replaced by a view capable of taking into account the normality of crime, which at the same time called for new technologies of power to solve the problem. Similarly, new forms of expertise emerged that no longer understood crime as a clinical-psychiatric question of sick versus healthy. The following chapters explore the implications of this new problematisation of crime.

Chapter 4

Serving the community

The crisis of the welfare state The crisis faced by the treatment ideal gave rise to a more differentiated problematisation of crime and, to date, none of the new problematisations have assumed as dominant a position. For this reason, the final three chapters of the book break away from the strict chronological presentation of the first three and instead adopt a more thematic approach. Chapters 4 and 5 deal with the period 1970–2000, while Chapter 6 returns to the overall chronology and covers the later (albeit overlapping) period 1990–2000. The three chapters appear to have different focal points: Chapter 4 on the critique of imprisonment and alternatives to it, Chapter 5 on crime prevention, and Chapter 6 on the use of contracts and community policing. However, as mentioned earlier, although the problematisation of crime assumed a more differentiated character at the close of the twentieth century, this does not mean that it is impossible to identify certain key lines of development and fundamental issues that transcend this. My contention, therefore, is that, since the demise of the treatment ideal and the identification of the normality of crime, it has been possible to observe the development of a number of conceptions of crime whose models for the exercise of power are all related to a particular response to a general discussion about ‘the crisis of the welfare state’. Just as it has been shown that previous problematisations of crime were closely linked to strategic government (disciplining and regulation of individuals and populations to protect society and nurture the growth of social forces), I contend that problematisations of crime, from the 1970s onward, have evolved in parallel with changed models for general political government. This chapter shows, first of all, that the critique of the treatment ideal coincided with a more general critique of imprisonment as a form of punishment. This resulted in a demand for alternatives to imprisonment, and the chapter will specifically focus on the recommendations for community service and the use of offender–victim conferences as part of a restorative justice scheme. Both of these initiatives correspond to the aforementioned transformation of political government, the aim of which was to make

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government more distant, so that power was no longer exercised directly by the state (and state institutions) but was, increasingly, exercised through self-management, the community, etc. The idea of the community has been particularly central to the problematisation of crime since the 1970s, whether in relation to sanctions, crime prevention or the space in between the two. Where Chapter 5 deals in detail with the community as a category of government, Chapter 4 describes the complex problems to which selfmanagement and communities were seen as a general solution. Both self-management and the community have been presented as solutions to the government crisis that, in the 1970s and early 1980s, was claimed to have impacted upon the rationale behind the welfare state. The idea of ruling society from the centre was the object of criticism on several fronts, a brief summary of which includes the following elements (see, e.g., Brydensholt 1979; Larsen 1983; and for an analysis of these critiques, Mortensen 2004: 115 ff.): • •

• •

A financial crisis: it was claimed that the welfare state and public sector were too expensive and causing balance-of-payments problems. A governance crisis: the complexity of society and technological progress were believed to constitute barriers to rational regulation and therefore placed limits on the social engineering idea that inspired the welfare rationale. The 1970s focus on planning did not go unscathed either. Bureaucratisation and clientalisation: instead of treating individuals as citizens, it was claimed that the supposedly paternalistic rationale behind the regulation of the welfare state turned them into passive clients. A moral crisis/solidarity crisis: the extensive regulation was alleged, e.g. to undermine the communities’ moral collectives.

Other critiques could be added, which in various ways contributed to the alleged ‘crisis of the welfare state’ (Andersen 1983). The bottom line was that ‘more and more began to see the welfare state’s way of functioning and regulating as an independent source of significant social problems’ (DalbergLarsen 1988: 183). The state-centred way of regulating individuals and the population was quite simply regarded as ineffective, if not counter-productive and even self-undermining. This crisis was followed by various proposals that included the redistribution of responsibilities for political rule. Most importantly, it was widely held that the state should no longer be the driving force, but should stimulate decentralisation and self-management. In a strategic context, the idea of self-management promoted thinking about the (re)construction of the community. The assertion in this and the following chapters is that the attempts to govern the crime problem followed this general shift in political rule. In other words, dealing with the question of crime was no longer primarily seen as a state responsibility. Instead, individuals and communities were to be made responsible for solving the problem, and

Serving the community 79

the practices of government were to be rearranged to construct these active and jointly responsible individuals and communities. Of course, the critiques of the welfare state mentioned above were not only articulated in a Danish context but can be identified in several Western countries at the time (for discussions of parallel German critiques as voiced by Jürgen Habermas and Niklas Luhmann, see Borch 2011). Indeed, Nikolas Rose has described the common movement that I am identifying here – comprising alternatives to imprisonment (Chapter 4), crime prevention (Chapter 5), community policing and contracts (Chapter 6) – as an advanced liberal form of rule (1999). According to Rose, this is a form of political rule that breaks with the welfare state rationale, which reigned in the name of society and the social, and aimed to facilitate social progress. Rose’s argument is that, since the 1970s, in the light of discussions about the crisis of the welfare state, a new modus for government has emerged in Western democracies, one which combines elements usually regarded as incommensurable. The term advanced liberal government therefore covers a hybrid exercise of power comprising two dimensions. First and foremost, it is a (neo-)liberal rationality of government that manifests itself in a focus on the individual. According to Rose, this has meant that, increasingly, political government aims to create active, responsible and entrepreneurial individuals who make free choices about their own conditions and do not, therefore, become clients of a heavily regulating state. This shift is reflected discursively in the change from ‘unemployed’ to ‘job seeker’, from ‘employee’ to ‘contractor’, from ‘client’ to ‘consumer’, etc. It is not just a matter of new ways of describing individuals but also comprises significant changes in the prescribed techniques, duties and self-technologies (Rose 1999). A key feature of the promotion of the active and responsible subject is that the actual medium for government is changed. It is no longer about government through society, but government through freedom, through individuals exercising their freedoms. This diagnostic point may appear paradoxical if a negative image of power is adhered to in the sovereignty discourse, i.e. if power is contrasted with freedom. However, by adopting a governmental view of power, it becomes possible to understand and describe advanced liberal government as a means of wielding power that constructs free subjects. In other words, it operates by directing individuals to manage and govern themselves on the basis of free choice. The second dimension of the advanced liberal model has a communitarian or community-oriented nature that aims to (re-)create the communities through which individuals are said to have been constituted, but which were allegedly broken down during the reign of the welfare state. In its basic form, this constitutes a break with traditional liberal views, as the individual is not regarded as fundamentally autonomous. On the contrary, individuals are said to be reliant upon their community’s morals and solidarity. Here too, there is a movement away from welfare-state government

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through the social. In the new rationality of government, society and the social are separated. Big, integrating holistic projects are no longer the end game. Instead, it is about a diversity of communities that are, as part of political government, encouraged to take care of themselves. In summary, in Rose’s own words, this peculiar hybrid of liberalism and communitarianism can be characterised as follows: Advanced liberal rule [. . .] does not seek to govern through ‘society’, but through the regulated choices of individual citizens, now construed as subjects of choices and aspirations to self-actualization and self-fulfilment. Individuals are to be governed through their freedom, but neither as isolated atoms of classical political economy nor as citizens of society, but as members of heterogeneous communities of allegiance, as ‘community’ emerges as a new way of conceptualizing and administering moral relations amongst persons. (1996a: 41) Two further comments or clarifications should be made about advanced liberal rule. First, as mentioned previously, it changes the role of the state. Where Foucault spoke of a governmentalisation of the state, Rose identifies a contemporary de-governmentalisation of the state, in which the ‘social state’ is replaced by ‘the idea of an entrepreneurial state’, a ‘facilitating state’ and an ‘animating state’ (2003: 183). This also means that a distancing of government takes place (1996a: 43). The state does not directly intervene in society, but seeks to lead individuals and communities to govern themselves. Second, advanced liberal rule must not be understood as a purely bourgeois-liberal strategy. Rather, it is about a transformation of political rule that transcends or breaks with traditional right-left differences. The entirety of so-called third-way politics (Giddens 1998) can thus be interpreted as a programme for advanced liberal rule. Some of the crime-specific elements of this advanced liberal exercise of power will be identified in this and the following chapters, beginning with a discussion of the alternatives to imprisonment in which the idea of the community plays a significant role. The critique of imprisonment and new alternatives The previous chapter showed how the treatment ideal met with increasing scepticism during the 1960s. However, imprisonment itself also came under fire. One of the important contributions to the critique of imprisonment was delivered by the study Fænglser og fanger (Prisons and Prisoners, 1969) by Flemming Balvig and Preben Wolf, among others. The book attacked imprisonment on several fronts.1 First, like the critique of the treatment ideal, it questioned the ability of imprisonment to reduce the inmates’ recidivism.2

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In general, it was only possible to adduce ‘low or no influence on the prisoners’ chances of remaining crime-free – irrespective of the nature of and design of the institution’ (1969: 86). Thus, if reduced recidivism was a declared objective of imprisonment, it had not been achieved. The authors also talked about ‘[t]he implication of the non-existent effect of time spent in prison’ (1969: 97). This implication was based, inter alia, on a decidedly sociological understanding of the background to criminal behaviour, in which the prison, as well as the exceptional state it constituted for the prisoner, was not attributed any significant positive effect on the individual’s behaviour once released: As we have stressed, we consider crime to be conditional on the structural situation in which [the criminal] finds himself in society. The transforming system that the official legal system constitutes, and the individual-insulating mechanism that prison represents can, therefore, only be assumed to act as a symptomatic treatment, in which change and the treatment of causes [are] only done by changing the structure of society. (1969: 98, italics in the original) Second, by extension, the authors claimed that not only did imprisonment not have the desired positive effects on the criminal, it also had unintended, extra-legal consequences (1969: 98–9). The argument about the extra-legal effect of jail time was based on stigmatisation theory: the punishment did not end the moment the prisoner was released, but would stay with him or her and have a negative effect on the way other people looked at him or her. In light of this, and against the background of statistical evidence that the majority of criminals eventually stop committing crimes of their own accord – that is, independently of the nature of any sanctions – the book recommended reduced use of imprisonment. This would also save money without having to ‘undermine the judicial system’s potential general preventive nature’ (1969: 172). So in terms of both expenditure and power efficiency, it was claimed that people’s actions could be regulated better, more easily and more effectively by relying less on imprisonment as a sanction. The critical current was continued in a 1972 report on decriminalisation and reducing levels of criminalisation, which recommended, for example, that the use of imprisonment should be reduced in favour of an increased use of suspended sentences (Report 1972b). This gained political support with the passing of an amendment to the Criminal Code for minor crimes in 1973 (Act no. 319 of 13 June 1973; see also Brydensholt 1975: 160). Yet this was only the beginning of the shift away from imprisonment as a central response to crime. Thus, Brydensholt spoke of ‘the ineffective punishment system’ (1975). Based on a critical view of imprisonment that was similar to Balvig and others, he agreed with the shift away from imprisonment that had already begun. The same direction was adopted by Rentzmann

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(1975), who presented an extensive catalogue of foreign alternatives to imprisonment – albeit not all of which he thought would be applicable in a Danish context.3 He particularly highlighted the use of community service, which was introduced in 1973 in the United Kingdom. Under this sanction, an offender could be sentenced to between 40 and 240 hours of unpaid work in his or her spare time (both on weekdays and at weekends). According to Rentzmann, this sanction, which seemed promising, had the following advantages: The sanction means that, at the same time as they are ‘serving’ their sentences in a constructive and meaningful way, felons are able to remain in their normal environment, work and take care of their usual duties. The sanction also has the great advantage that it involves other members of the community in the enforcement of sentences, which means that it underlines the social duty of everybody in this field, and helps to reduce the stigmatisation and mystification of those who violate the law. (1975: 178) From the point of view of an analytics of power, it is, above all, the reference to the other members of society’s ‘social duty’ to participate in the enforcement of the sentence that attracts interest. Not only was the sanction moved away from the prison, but ‘ordinary’ individuals were also duty-bound to help enforce it. This had two consequences. First, the limit was tendentially lifted regarding what belongs under the justice system and what does not. Second, the relationship between society and the individual changed, both for the law-abiding and the criminal individual. Individuals were now expected to be involved in the imposition of sanctions, which was formerly a state responsibility.4 In other words, the responsibility for the enforcement of the sanction and rehabilitation should be shared between the state and the individuals. One of the key contributions to this idea of alternatives to imprisonment was the report Alternativer til frihedsstraf – et debatoplæg (Alternatives to Imprisonment – A Discussion Paper), which was submitted in 1977 by a working party set up in 1975, of which Rentzmann was a member. According to its terms of reference, the working party was to study ways of continuing the reform process towards increased use of non-custodial sanctions, of which the above-mentioned 1973 Act was a part. This was to be linked to an evaluation of ‘the changes in the pattern of reaction that will be necessary to achieve a reduction in the future prison population of, for example, 2,000, 2,500 and 3,000 persons’ (Report 1977: 7). A discussion paper on this matter bore witness to a (technocratic) faith in the potential for using the right means to reduce the prison population to a level that, from this perspective, had been set arbitrarily. The working party summarised the grounds for its work in a

Serving the community 83

number of points, several of which have already been touched upon (Report 1977: 9 ff.). They were: •

• • •

Imprisonment is, for humanitarian reasons, problematic, because it places a great burden on the inmates and also has negative, stigmatising effects after release. In addition, leisure time is more valued now, than in the past, so a custodial sentence seems worse than it used to. Imprisonment does not contribute to rehabilitation and does not reduce recidivism. Imprisonment for ordinary property crimes, especially theft, must be revised, since this type of crime does not place the same burden on the victim as before. Imprisonment is a very costly sanction.5

From this starting point, the working group wanted to analyse and propose alternatives to imprisonment that bore in mind that they still had to constitute some form of punishment. The sanction was to be an alternative to prison, but one that still inconvenienced the offender. The recommendations came in two blocks: within the existing framework (dropping charges, fines, conditional sentences); and proposals for brand-new alternatives to imprisonment. In this context I am, like the working group, primarily concerned with the latter. Based on a study of a number of alternatives to imprisonment elsewhere in the world, the working party recommended two initiatives in particular: community service and overnight prisons. The idea of the overnight prison was that, for a period of up to six months, the convicted individual would be able to do his or her job, or continue in education, during the day, but spend the evening and night in an institution. In many respects, the purpose of the sanction was the same as that of community service. The penalty severely affected the offender’s free time but also allowed him or her to maintain his or her links to the labour market or education system. As the working party was aware, there was a general in-built bias in the night-prison option, as it could not be imposed on anyone not in work or education.6 While the idea of overnight prison did not prove particularly popular, the community service proposal attracted positive support. The basic features of the community service model have already been outlined. This was a separate form of sanction that, instead of imprisonment, sentenced the offender to unpaid, socially beneficial labour in the community for a set number of hours. Many benefits were attributed to the idea: It does not preclude the offender from maintaining a normal life and does not radically alter his family and work situation; it does not imply the same likelihood as imprisonment of a negative effect on the individual convicted; it is cheaper. (Report 1977: 98)

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According to the working party, the work could also be regarded as a form of repayment to society, as direct compensation from the offender (an aspect that was meant to appeal to public opinion); the work would be of educational value to the offender; and the close contact with other individuals that would be created through the work situation would ‘involve opportunities for a beneficial effect on the offender’ (Report 1977: 99). Regarding the specifics of the proposal, the working party stated that the offender should consent to the imposition of community service, and that the work should be of a nature that would not otherwise be undertaken – in order not to take jobs from others. More specifically, it was envisaged that the community-service work would be done in public-sector or publicly funded institutions, e.g. non-profit organisations, youth and leisure clubs. The need for ongoing supervision of the enforcement of the sentence was also highlighted. Finally, it is important to note that community service was not envisaged for all offenders who would have previously been sent to prison. The working party emphasised that the sanction should primarily be used as an alternative to relatively short-term imprisonment. This suggested another important requirement, namely that the offender was actually found to be suitable for community service, i.e. possessed a degree of social stability (Report 1977: 109). One of the interesting features of community service is that, as a form of sanction, it seemed to make allowances for quite different views on punishment – something that the working party also underlined. As part of the theoretical basis for the introduction of community service, reference was made to a UK report (the Wootton Report) that highlighted the sanction’s simultaneous links with otherwise divergent perspectives.7 In other words, the sanction appeared to have an unusually broad appeal. Communities and suitable individuals Following the report on alternatives to imprisonment, the Standing Committee on Criminal Matters set up a working party that drafted a recommendation for community service in 1980, including a pilot scheme, an idea already put forward in the 1977 report. A pilot scheme was eventually launched in 1982 in Copenhagen and in North Jutland County. From 1985, the scheme was rolled out across the whole of the country, and in 1992, community service was incorporated into the Criminal Code. In short, the discursive repertoire had been anchored in practice.8 Although there have been discussions about the effectiveness of community service, the sanction enjoyed general support. In the following I wish to examine two important aspects of the idea of community service. First, the idea of suitability evaluations. Second, the community aspect mentioned above. Not all offenders were considered suitable for community service. Even if the offence was of a nature that warranted the sanction – e.g. theft or minor property crimes – it was argued that this alternative to imprisonment would

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require a certain suitability in the offender: ‘completing a sentence of community service, which requires the offender, often over a prolonged period of time, to turn up and put in some form of physical effort for several hours, requires a degree of discipline and social adjustment’ (Rentzmann and Reimann 1994: 90). As a result, the Standing Committee’s working party proposed (and this was later put into practice) that the Prison and Probation Service should acquire information about the personal and social circumstances of offenders on whom the court was considering imposing community service. This was already done in cases where a suspended sentence was being considered. The important aspect of the suitability evaluation is not so much that it was conducted at all, but rather how suitability was defined – in other words, which factors were included in the evaluation of the extent to which an offender was deemed suitable for community service. It may, therefore, be instructive to look more closely at the technological dimension, which was used to construct the notion of suitability and, as such, served to categorise and select particular types of subjects for alternative forms of punishment. In this context, it is worth looking at Vejledning for personundersøgere (Guidelines for Pre-sentencing Reports), published by the Prison and Probation Service in 1994 (Kriminalforsorgen 1994). This guide contained a reproduction of the Prosecutor General’s announcement no. 3/1992, which dealt specifically with community service. It stated that, ‘Decisions on the imposition of community service are typically taken on the basis of a tangible assessment of the offender’s person compared with the particular circumstances of the criminal act’ (Kriminalforsorgen 1994: Appendix 1.2: 12). More specifically, the guide prescribed how the person who conducts the pre-sentencing report, via an in-depth interview, should map the accused’s personal and social conditions and put this in writing for the court’s perusal. Of the many different subjects that the Service envisaged would be covered in the interview, and which it claimed would be relevant to decisions about suitability, only a few need be mentioned in the present context: • •

• •

Father’s and mother’s occupation. Early life and relationships at home: ‘Whether the defendant grew up in the capital, a provincial town or in a rural community; whether he was brought up by parents, step-parents, adoptive parents, foster parents or others. The home’s financial status and the relationships between family members during their upbringing should also be mentioned’ (Kriminalforsorgen 1994: 36). Recreational pastimes and acquaintances: ‘It is important to know how the suspect spends his spare time’ (Kriminalforsorgen 1994: 39). Housing: ‘Under this point, a visit should be made to the defendant’s residence, or the person conducting the study should conduct a detailed interview with the person involved that touches on the following: Does

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• • •

the defendant live in a rented room or a self-contained apartment, etc.? Of what standard is it, etc.?’ (Kriminalforsorgen 1994: 39). State of health: somatic and mental condition, drug- and/or alcohol abuse? Education, work record, etc. (driving licence?). Financial situation.

As this shows, the information covered quite extensive ground, but the point is that, in total, it should provide the person compiling the report, and later the court, with a relevant basis on which to determine whether the offender was suitable for community service – whether, in other words, a stable foundation could be identified that made it likely that he or she would be able to meet the requirements placed on him or her by the communityservice sanction. Two issues are particularly interesting in this context. First, the pre-sentencing reports show that the critique of imprisonment did not actively challenge the idea of individualisation. The decision on the imposition of community service should depend not only on the criminal act, but also rest on an overall assessment of the offender, including everything from childhood to current leisure habits and housing situation – unearthed via a single interview by an individual affiliated to the Prison and Probation Service, who was paid a fee for his or her services (Kriminalforsorgen 1994: 6). Second, the reports have clear exclusionary effects, which have also been pointed out – albeit using different terminology – by several critics (see e.g. KRIM 1989; Vestergaard 1989a: 7). As such, if someone is excluded from the housing market, has no hobbies, no positive relationships with family, no job, etc., the report will point towards imprisonment instead of community service. In other words, if the offender does not live up to the construction of suitability that the community service sanction promotes, and which the presentencing report establishes, then he or she is met with a sanction which – according to the terms of the discussion about alternatives to imprisonment – is judged to be worse than community service. It has been noted that community service involves a sharing of responsibility for the enforcement of the sanction between the authorities and local individuals, in that the work is done outside of the prison and in collaboration with people who have no professional connection to the criminal justice system. What is the significance of this sharing of responsibility? Given that community service is often performed in youth clubs, non-profit bodies, etc., it is possible, on the one hand, to observe the sentence as a contribution to the vitality of the community. The penalty takes place in, and via, the community. This aspect is particularly striking in English-language discussions that focus on community sanctions/measures (see e.g. Rentzmann and Reimann 1994: 11–12; see also Cohen 1995; Giddens 1998). On the other hand, it is also important to emphasise that, although the community service idea can be understood in relation to the community, it is not simply an

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expression of confidence in the latter. Community service does not, then, mark a complete shift in governmental rationale from state intervention (through prisons) to organising, governing and sanctioning by the community. At least in the Danish problematisation, the initiative remains in the hands of the authorities, with strict regard to public-sector control of the selection of both individual and institution, the definition of the work and the supervision. In this sense, the community’s contribution is limited, despite the fact that it shares responsibility for the enforcement of the sanction.9 Although community service, therefore, does not mark a complete transformation in political rule, I will nevertheless contend that the discussion of this alternative to imprisonment has made a vital contribution to preparing the ground for other measures that more explicitly and directly operate through communities. These include the concepts of victim–offender mediation and restorative justice meetings. Restorative justice meetings In the early 1980s, further proposals for alternatives to imprisonment were put forward in Denmark. The following section considers in greater depth a proposal that was not only an alternative sanction, but also a decidedly non-legal one: victim–offender conferences, referred to in the Englishspeaking world as restorative justice meetings. In fact, the 1977 report on alternatives to imprisonment included a short section on restorative justice, but the working party did not expect the scheme to be introduced in Denmark (Report 1977: 144). The idea behind restorative justice meetings would, however, prove to be extremely hardy and it was welcomed with great optimism. Perhaps the most significant critique of the model does not concern the basic concepts – rather, it is that these ideas have not been implemented sufficiently consistently (that, in practice, restorative justice meetings have become a supplement rather than an actual alternative to imprisonment). As in the case with community service, the idea of restorative justice has both positive and negative elements. The negative consists of a problematisation of the traditional handling of criminal cases in the courts. The critical objections include the following points: in the legal system, the lawyers ‘steal’ the conflict and absorb it into a purely legal game; the proceedings are often lengthy and incomprehensible to the offender; the penalty does not have a sufficient deterrent aspect to stop future crime; the legal system does not look after the victim’s interests (the purpose of traditional conflict management is not to restore the damage, but to apportion blame and determine a sanction); victim and perpetrator do not come any closer to a mutual understanding; and, finally, the conflict is bound too closely to the offender’s person, whereby the underlying social problems are ignored (see Kyvsgaard and Vestergaard 1988: 116–17). In short, it was claimed within this problematisation that the

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traditional method of processing criminal cases focused more on ending conflicts than resolving them. It was as a solution to these problems that restorative justice and, more generally, alternative conflict resolution, was presented – namely as a rationalised (more effective) way of dealing with conflicts, in which all of the parties’ situations and needs are taken far more seriously. The positive dimension underpinning the concept of restorative justice idea, in other words, the purpose that the meetings seek to fulfil, deserves to be quoted in its entirety: 1

2 3 4

5 6

The direct parties to the conflict should have more direct influence on the organisation and outcome of their case. They must have a better opportunity to be heard and to raise interests and needs related to the mutual conflict. The offender must have inculcated a deeper understanding of his (co-) responsibility for the injury or damage that occurred. The sanction imposed on the offender must, as far as possible, be meaningful and develop him. Destructive and excessive sentences should be avoided. The victim should feel that some form of reparation has been made for the damage inflicted. In order to process diffuse angst, a victim who has suffered something uncomfortable should be given the opportunity to clarify what really happened and why the offence was committed. Victim and offender should have the opportunity to develop mutual understanding and tolerance. Lay people and the community must be involved in the conflict resolution. Conflicts arising out of joint – perhaps system-generated – problems should be raised above the personal level and seen instead as an expression of collective responsibility. The community should take over the tasks that public-sector bureaucracy does not do well enough. Alternative conflict resolution is tantamount to selfmanagement/privatisation in criminal policy. (Kyvsgaard and Vestergaard 1988: 118)

As with community service, the ideas for alternative conflict resolution contain a tactical polyvalence (Foucault 1990: 100–2), in which the model’s basic ideas are readily reconcilable with claims and recommendations from different perspectives. It is not just that alternative conflict resolution is claimed to meet the requirements for a proper resolution of conflicts – and thus is assumed to be more effective than the legal system. Conflict resolution is also claimed to be cheaper (Kyvsgaard and Vestergaard 1988: 121). In addition, the idea of alternative conflict resolution relates explicitly to three discursive repertoires that were prominent from the late 1970s. The first was formulated within a primarily criminological perspective: the Norwegian

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criminologist Nils Christie’s (1977) argument that conflict should be regarded as a property belonging to the parties, which the legal system must not usurp. According to Christie, this property should be given back to the community, to neighbourhood courts composed of lay judges, who, Christie claimed, are better than the established legal system and its experts at exploiting the conflict actively (at defining norms) for the benefit of the victim, offender and community. On the whole, the idea of conflict as property is intended as a ‘vitaliser for neighbourhoods’ (Christie 1977: 12).10 The next discursive repertoire, with which the idea of restorative justice could be tactically connected, concerns the interest that suddenly arose in the victims of crime. Here, I am less interested in why so much attention was suddenly attributed to victims. It is more important to note that the victim perspective was actually promoted and that this, in itself, was something new. Earlier in the twentieth century, discussions of crime focused on the relationship between society and the criminal individual. In these discussions, it was society itself that had to be protected and taken into account, rather than the specific victim of the crime. However, greater attention was subsequently devoted to the victim (see also Snare 1999). This attention was reflected in criminology – especially in the Anglo-American world, where a decidedly victimological perspective was developed. This also found its way to Denmark (albeit in a somewhat muted form) – in legislation and in victim movements.11 With regard to legislation, in 1976 a system of state compensation to victims was introduced. On the organisational side, various crisis and counselling centres emerged for victims during the 1970s (Nielsen and Snare 1998: 84 ff.). The third and final discursive repertoire from which the discussion of restorative justice borrowed was a broader critique of the welfare state and its legal dimensions. In Denmark, this was represented especially by High Court Judge Hans Henrik Brydensholt (see e.g. Snare 1994: 80). Brydensholt has already been mentioned in connection with the critique of imprisonment. From the late 1970s, his critique assumed a more general form, arguing for a restructuring of the welfare-state government – from central planning and regulatory control to a form of political rule that took better account of the individual’s opportunities to realise their own ideas of what constitutes the good life (e.g. 1988: 36). Brydensholt referred to this model as the self-management state or the reflexive state, a concept that he developed by drawing largely on the German legal theorist Gunther Teubner’s theory of reflexive law (Teubner 1982). According to Brydensholt, government should not focus primarily on technically correct decisions but instead provide a basis for involving the citizens, and by this means arrive at decisions upon which the citizens can agree. He argued in favour of attributing independent meaning to the citizens’ own ways of life and perspectives via self-management, which it was thought would counteract the clientalisation that allegedly was produced by the welfare state. In the case of conflict resolution, the emphasis was on promoting ‘a development in the

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direction of a more free conflict-resolution model in which the parties themselves feel they are part of the solution’ (1994: 82). What is interesting in the context of this chapter is that the idea of alternative conflict resolution was not developed independently of other movements, but formed part of the ongoing discussion of how the problem of crime could be addressed more effectively, and built on problematisations of the traditional ways of dealing with conflict resolution and welfare-state government in general. But what, exactly, would alternative conflict resolution look like? An answer can be found, on the technological side, in the restorative justice meetings model conceptualised as part of a pilot scheme in 1997–2000. By way of introduction, it should be noted that the first trials of the model were held in 1995–96. This was a continuation of an action plan to combat violence presented to the government in 1993. A pilot scheme was proposed, in which violent young criminals and their victims could meet in local restorative justice meetings chaired by a neutral mediator. Since only very few cases were referred to mediation during the trial period, Parliament decided, in 1997, to launch a new trial, on the basis of which it was hoped that a decision could be made on a permanent system of restorative justice. As part of this experiment, in the same year, the Danish Crime Prevention Council (Det Kriminalpræventive Råd) put forward a proposal for how the system could be organised (Det Kriminalpræventive Råd 1997). As a starting point, the pilot scheme was described as part of an overall attempt ‘to strengthen the legal position of the victims of crime’ (Det Kriminalpræventive Råd 1997: 4). Restorative justice meetings were thought to contribute to this, since ‘the victim is able to vent his or her frustrations and angst and becomes more confident in everyday life, and that the offender assumes responsibility and refrains from further criminal acts’ (1997: 4; see also Regeringen 1993: Appendix 1: 25). The formal framework included the fact that the perpetrator must be at least 15 years old, that he or she had confessed to the crime, and that the crimes in question involved violence, burglary, theft, etc.12 Regarding the design of the actual meetings, the Crime Prevention Council’s (1997; 2000: 7) recommendation was as follows: The aim is to convene the meeting as soon as possible after the offence has been committed. Prior to the meeting, the police select cases where the offender has confessed and which are thought to be suitable for restorative justice procedures. The victim and offender are asked whether they want to be contacted by a mediator. If both the victim and offender wish to take part in a meeting, the case is passed to an independent mediator. The mediator then contacts the parties and the mediation can begin. Although it is a formally organised body, from this point onwards efforts are made to make the process as informal as possible. Participation is voluntary for both victim and perpetrator, and both can leave the process if and when they want. In practice, the meeting was to be organised so that the victim and offender would meet with the mediator at a neutral venue. First, both parties must

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agree to a set of rules that will form the basis for the work of the mediator, including, for example, that they must listen to each other and not interrupt each other. The victim and offender each present their view of the conflict. They then agree on what needs to be resolved; propose solutions; and negotiate until – if possible – an agreement is reached that both parties are able to support. They can agree, for example, that the offender must provide direct financial compensation to the victim, or that he or she must help the victim with practical tasks for a given period (a work agreement).13 Equally important, however, is that the offender apologises, and at the same time explains the background to the event so that the victim is able to de-dramatise the incident, let go of his or her anxiety and forgive, or to some extent be reconciled with, the offender. The mediator is a central figure in the restorative justice programme. As mentioned above, the mediator must be neutral. In order to avoid bias, he or she is not informed in advance of anything other than the parties’ names, addresses and phone numbers, and the date and nature of the criminal act (Det Kriminalpræventive Råd 1997: 23). The background to the crime, the offender’s personal and social conditions, etc. are not disclosed. In terms of personality traits, the mediator must: be good at talking with people, be able to listen and be neutral, be empathetic and open, have a high degree of integrity and be open-minded and trustworthy. He or she should engender a sense of personal safety and appear immediately deserving of respect. (1997: 30) Elsewhere, it is stressed that the mediator must have a clean criminal record, be committed, be of good humour and live in the local area where the meeting will be held. During the actual meeting, it is important that the mediator does not dictate the course of the actual confrontation. Rather, they must ‘act as a catalyst for the conversation’, i.e. encourage the parties to come up with a solution themselves (Henriksen 2000: 22). However, the mediator’s role does not cease when the parties separate. On the contrary, the mediator must follow up on the case. According to the Crime Prevention Council, this has two purposes: on the one hand, to ‘take care of the parties’, i.e. show continued interest in their situation and, on the other hand, to find out whether the terms of the agreement have actually been observed (1997: 24). While the mediator’s role and training are described in detail, the Crime Prevention Council’s design of the pilot scheme is at first sight, not particularly informative about the victim, the offender or the community. However, examining the forms of power inherent in the recommendations for the practical implementation of restorative justice meetings shows that this alternative conflict-resolution mechanism essentially aims both to promote the community and to assign specific roles to the victim and perpetrator.

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Regarding the subject constructions created by the meetings, it is essential that both the victim and the offender are constructed as active and responsible individuals. The parties should not be content just to let themselves be represented by lawyers in court. On the contrary, restorative justice encourages them to divest themselves of this passive mode and take an active role in their own conflict. As a result, setting up the meeting constitutes a form of government that – in the spirit of Brydensholt, for example – should lead the individuals to lead themselves, to find their own solution. This active intervention results in multiple outcomes (de-dramatisation, reconciliation, etc.), the most tangible of which is the agreement into which the parties enter. In this mutual agreement, an actual settlement of the conflict is reached, by means of working together voluntarily. Achieving the ideal outcome of the mediation situation – ‘one conflict – two winners’ (Boserup 1993) – also entails a rationalisation of conflict resolution. Through the meeting with the victim, it is assumed that the criminal will gain greater insight into the consequences of his or her act. This not only aims to increase his or her understanding of his or her responsibility for the actual event, but also suggests a self-technological effect – namely that, in future, he or she will act responsibly, both in relation to him- or herself and in relation to his or her fellow citizens. The victim may also learn self-technological lessons from the meeting, as he or she is made aware of the background to the crime and this increases his or her knowledge of criminogenic situations. The victim learns about risk management, which will help him or her to act with greater caution in future (see also Chapter 5). However, there is also a more fundamental self-technological aspect at play, as by saying yes to participation in the meeting, the parties commit morally, and of their own free will, to taking an active role in their own circumstances. This self-work continues during the process, when the parties have to appear as peaceable and conciliatory subjects (see Pavlich 1996: 117, 124). If the parties do not accept this subject status but, instead, sit silently and sulk about the injustice to which they feel they have been exposed, the meeting will break down. Both the victim and the criminal must, therefore, bear a moral responsibility to reach an agreement via active dialogue. The conclusion of an agreement reinforces the impression of active and responsible individuals. This agreement may take the form of the parties voluntarily changing their lifestyle (the criminal promises, for example, not to get as drunk). Overall, therefore, restorative justice reflects a form of empowerment technology in which the parties (above all, the criminal) need a helping hand, in the form of ethical self-work, to become active and responsible subjects – and thus good citizens. At the same time, like community service, the rehabilitation of the criminal takes place outside of the prison and via direct contact with citizens and communities. Restorative justice meetings also promote the idea of the community and its importance when it comes to addressing the problem of crime.14 This

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dimension is constructed in several ways. First, the mediation should make use of the community’s public spaces, and physically take place in a conference room in the town hall, library or community centre – the atmosphere of which is, if not homely, then at least informal (Det Kriminalpræventive Råd 1997: 23–4). Second, as mentioned previously, the mediator must be from the community. The mediator is constructed as the epitome of an active citizen, who bases the mediation on the norms of the community. In other words, it is only at first sight that the mediator is expected to appear as neutral as a judge in a courtroom. In the actual meeting, however, it is accepted that the mediator embodies and (perhaps unconsciously) promotes the community’s norms and values. The strong link between the community and alternative conflict resolution is also illustrated by a recommendation drawn up by the Crime Prevention Council in connection with an ongoing evaluation of the mediation experiment in 2001 (a positive evaluation in 2000 led to the pilot scheme being extended until 2002). The fact was that several attempts had been made to mediate in disputes between neighbours that had degenerated into violence and vandalism. It was noted that these disputes were typically of such a nature that the police did not intervene in them, and as such they were able to escalate into full-scale conflicts. As a result, the Crime Prevention Council thought: that this type of meeting should be available in disputes between neighbours, even those that were not criminal cases and therefore did not fall within the scope of the pilot scheme. By offering mediation in these types of cases, the system could assume a genuine crime-prevention aspect, such that the police might eventually be free of calls from people complaining about their neighbours, and would thus have more time to take care of the many other tasks they face. (2001a: 4) Here it is not only interesting that the model was recommended in areas that were not previously covered by the pilot scheme, but also that the whole rationale was believed to be applicable to new fields.15 At least as important is the fact that mediation is connected explicitly with crime prevention. Mediation is thus raised to the status of a technology that can be used both as a sanction and for prevention. This is emphasised by the way the Crime Prevention Council discusses what they refer to as ‘sound advice about neighbourliness – and disputes with neighbours’ (2001a). For example, the Council states that people should welcome new neighbours, greet them on the street or communal areas, get to know them better, e.g. by participating in street parties, working weekends and joint activities in the community, and offer help (pet-minding, etc.) when the neighbour is away (2001a: 4–5). All these techniques are designed to prevent conflict – the basic idea being that

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an active neighbourhood and community can, in itself, reduce the number and scope of conflicts. The governmental rationale behind this consists of encouraging individuals to actively create a local identity, encouraging them not to offend against each other. If a conflict with a neighbour should arise nevertheless, the Council recommends that people follow 11 specific pieces of advice that adapt the mediation concept to disputes between neighbours in such a way that intervention called for by the police remains an option that is not used.16 This proposal by the Crime Prevention Council represents a double promotion of the status of the community in the fight against crime. On the one hand, it is claimed that conflicts arise from dysfunctional communities; on the other, conflicts are to be solved via the community, namely via techniques that emphasise local norms rather than abstract legal rules. In brief, the community becomes the central hub for dealing with the problem of crime – it is presented as a panacea to be activated for both preventive and reactive ends. The preventive ends will be explored in more detail in Chapter 5.

Chapter 5

Crime prevention: towards a totalitarian biopolitics

From individual and social conditions to situation Whilst the previous chapter followed a line of development that highlighted the alleged advantages attributed to various alternatives to custodial sentences in institutions, this chapter will look at a parallel movement – one that was also fuelled by the demise of the treatment ideal, but put crime prevention at the forefront instead of sanctions. In the discussion of Geill’s proposed solutions to the problem of crime in Chapter 2, I argued that his crime-prevention recommendations were very wide-ranging. In this chapter I will argue that modern thinking about crime prevention is no less wide-ranging. In fact, I assert, contemporary crime-prevention strategies assume a tendentially totalitarian biopolitical character that, in the name of fighting crime, seeks to regulate all aspects of life quite rigorously. I shall substantiate this claim through an analysis of recommendations by the Danish Crime Prevention Council. The timing of the establishment of the Danish Crime Prevention Council in 1971 was no accident. It was linked to a problematisation of the existing conceptions of and responses to crime. The treatment ideal, in which faith had previously been invested, had failed, meaning that Lombrosian or psychiatric approaches to the problem of crime no longer applied. However, cultural, welfare and social policy had not been sufficiently able to regulate social inequalities either, which is why, for example, Wolf and Høgh’s focus on social conditions seemed strategically deficient in the fight against crime. Finally, the rise in recorded crime – the total number of reports of criminal offences in Denmark rose from 126,367 in 1960 to 260,072 in 1970 – led to perceptions that there was an increasing risk of falling victim to crime. In other words, crime statistics suggested that the idea of crime being normal was not simply a prominent theory, but seemed to be a general experience (see also Garland 2001: 147). Since the existing techniques and ideas had not prevented crime from flourishing, a whole new approach to the question was required. As shown in Chapter 4, alternatives to imprisonment constituted one possible way forward, but perhaps the problem could be addressed more

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fundamentally by looking at crime-prevention techniques. This was the basic idea underpinning the establishment of the Danish Crime Prevention Council. Of course, crime prevention had been a topic prior to the institution of the Crime Prevention Council, not only in Geill’s work. For example, Hurwitz’s Criminology had presented a theoretical basis for a new perspective on crime. In the first edition of the book, he discussed the criminal situation, i.e. ‘the constellation of circumstances immediately before and around the criminal act being prepared and committed’ and from which it was necessary to abstract the ‘crime’s personal and social preconditions’ (1948: 355). There are many interesting aspects to Hurwitz’s descriptions of the criminal situation. It is worth highlighting two that Hurwitz formulated in support of the Swedish psychiatrist and criminologist, Olof Kinberg. On one side, the perpetrator’s ‘psychopathological reaction tendencies’ were attributed a central role in whether a potential criminal situation would result in criminal behaviour (Hurwitz 1948: 360, italics in the original). It was claimed that the influence of alcohol was among the elements that could encourage crime. Consequently, in this perspective, the crime could be prevented through the regulation of licences to sell alcohol, an idea that, as previously mentioned, had already been raised by Geill. Hurwitz also pointed to the influence of crowd psychology on individuals’ psychopathological patterns of reaction (1948: 363). Under the suggestive influence of the crowd, individuals could be moved to perform actions that they would refrain from under normal circumstances. This mention of the crowd is interesting, not only because it pointed to the need for criminal policy measures to deal with mass crime, but also because it constituted one of the last – if not the last – explicit references to the ‘classic’ crowd discourse in twentieth-century Danish criminology.1 While linking the criminal situation and psychopathological reaction tendencies revealed that Hurwitz (and Kinberg) found it difficult to break away from a psychological approach to the problem of crime, the other dimension of the criminal situation contained the basic features of a radical shift in perspective. This second dimension consisted of the situation’s ‘objective nature’ (1948: 360, italics in the original). Crucial, here, was that crime was considered a function of the low risk of detection and inefficient policing. According to Hurwitz, ‘one of the most important practical crime policy measures is to prevent the emergence and spread of such situations’ (1948: 362). What is interesting about this assessment is that it marked a fundamental shift of focus in the fight against crime. The point of intervention was no longer the criminal individual’s psychological condition, nor any social causes of crime, but the criminal situation itself and the so-called objective circumstances that allegedly determined its occurrence. A logic of its own was, as it were, attributed to the criminal situation. The assumption was that it was possible to distinguish between criminogenic and non-criminogenic situations, i.e. those that involve a risk of criminal behaviour and those that do not. If, based on such a distinction, it was possible to intervene in

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criminogenic situations – for example, through ‘bans on leaving bikes and cars unlocked or ready to go’ (1948: 362) – then a major step would have been taken towards eliminating the problem of crime.2 The focus on the crime situation not only led away from the idea of the abnormal offender, but – along with the image of crime as normality – led towards the idea of crime prevention. In the following, I examine a series of proposed crime-prevention technologies as they have appeared in publications by the Crime Prevention Council. It is perhaps worth repeating here that this analysis does not claim to provide a picture of what has actually happened in practice. Many crime-prevention recommendations have certainly been followed, but how, and to what extent, are not the subject of this chapter. Information about crime prevention The Crime Prevention Council was set up with the following remit, which has remained unchanged over the years: ‘The purpose of the Council is, within existing legislation, to promote crime prevention through the implementation of measures to enhance security, by providing information or in any other appropriate way’ (quoted here from Det Kriminalpræventive Råd 1992a: 3). The Council has always emphasised the importance of publicity and, as such, has produced a large number of pamphlets. The focus on information is interesting because the crime-prevention purpose here is a direct extension of the Enlightenment idea that knowledge – information about crime prevention – can be translated into something that directs action. From the outset, proposals for crime-prevention initiatives were coordinated by a number of working parties (initially seven, but five since the mid-1980s): the SSP Committee, the Crime Prevention Information Committee (formerly called the Education Committee), the Committee for Crime Prevention by Planning Residential Environments, the Crime Prevention Scheme Advisory Board and the Technical Safeguarding Committee.3 As the titles of the committees suggest, the Council takes a very wide-ranging approach to the problem of crime, a fact that will be emphasised in the following, where the discussion revolves around some of the most important aspects of the Council’s five-pronged approach. The idea is not to look at each individual committee in depth, but to identify the types of recommendations that can be grouped under the five titles.4 The analysis of these recommendations will serve to illustrate how the idea of crime prevention differs radically from, for example, the treatment ideal. The first of the priorities (providing information about crime prevention) was originally intended as a measure aimed at children and young people in particular. The focal point was, and is, information and education in state schools, youth clubs, etc. Through co-ordinating information, people working for the police, schools and social services were to encourage children and young people not to solve their problems by means of criminal behaviour.

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The Crime Prevention Council had such great confidence in this approach, and was so insistent that prevention activities must include primary and lower-secondary schools, that it found it ‘disappointing’ that information about crime prevention was not ‘a compulsory subject when the new Act on primary and lower secondary education was adopted in 1975’ (1992a: Appendix 3, 11). Despite this, the Council stuck with the idea of influencing children and young people through schools. In 1984, it started ‘the development of a model for direct teaching guidance for ongoing crime-prevention work in schools, from the kindergarten class to 10th grade’ (1992a: Appendix 3, 13). This manifested in support for ‘idea packs’, which targeted different school grades and served as ‘inspiration for the continued development of crime-prevention work with the school as the focal point’ (1991b: i). The materials were aimed at both teachers and the police, with each class having the option of a visit from a police officer. For children in classes above second grade, parental involvement was also recommended.5 ‘Rules’ were the focus of the inspirational material for children from kindergarten class to second grade. Among the ideas were puppetry: SHORT PUPPET PLAY – start the lesson with puppet play The teacher and the policeman each play a role. Proposal for the content of the game: The teacher is sitting in the staff room, waiting for the policeman. She talks to herself, wondering whether the policeman has forgotten their appointment. She is a little worried because the class has been looking forward to the visit. They have even prepared questions. The policeman arrives. They greet each other and talk about mutual expectations. The conversation turns to the children. – – – –

Have they have been looking forward to the visit? Is there much vandalism in the school? Is there trouble in the class? Are there any naughty children?

The teacher says that there are only good children in this class and encourages the policeman to ask the class himself. After that, the conversation is between the pupils and the police officer. (1991b: 7) The Council also recommended discussion of ‘rules for the life of the class’: ‘draw up rules of your own for fostering a sense of belonging to the class and put them on a poster in the actual classroom. Leave space for subsequent additions as the need arises’ (1991b: 15). It also recommended discussion of questions such as ‘what can you do to be a good classmate?’ in the material for

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grades 3–5. The theme ‘Yours and mine’ explored ‘antisocial behaviour in the town’ via a Monopoly-like game, complete with a board, chance and risk cards, which could be played in class and discussed afterwards. The chance and risk cards (drawn when a player landed on a black square) were worded as follows: ‘The person sitting to your right vandalised trees in the park. He misses a turn’, ‘Two boys are ripping up a library card. You get them to report themselves to the librarian. Move one space forward’ and ‘Several bikes have been damaged. You’ve heard who did it. You tell the class teacher. You receive 3 coins’ (1991a: 83). The key point about information concerning crime prevention is, of course, that crucial significance is attributed to school children participating in role-play, etc. on crime-related issues, and that schools in general are made the focal point of crime-prevention work. The proposals contained in the idea folders for discussions, games, etc. that do not relate directly to crime, but rather to ‘antisocial’ or deviant behaviour in general, also show that the content of crime-prevention work was very broad in nature. Heavy emphasis was thus placed on collective rules and the community. This reflects an attempt to govern on the basis of norms. The Council promoted micropractices aimed at taming insubordination and disobedient inclinations. Attempts were also made to promote confessions. If he or she witnesses – of even just hears about – criminal behaviour, the individual child is encouraged to bring it to the attention of figures of authority and also to implore others to confess their criminal or antisocial deeds. Finally, it is worth noting that, in this setting, crime-prevention work is done in the guise of play. In other words, play – which is otherwise epitomised by having no other intention or purpose other than play itself – is made the instrument of an endeavour to regulate actions. The fact that school is considered an important medium for crimeprevention information is denoted by the diversity of proposals for preventive measures in this area. As a supplement to the above, the next section will look at an absolutely crucial focal point for the Crime Prevention Council’s recommendations, which can be summarised under the heading ‘free and responsible choice’. In the words of Nikolas Rose (1999), this is an advanced strategy for liberal rule that operates through the construction of entrepreneurial and responsible individuals. The link between crime and freedom of choice recurs often in the Council’s proposals for crime-prevention information. For example, the idea folder mentioned above for grades 8–10 was on the theme ‘Crime – choice or . . .?’. It stated: ‘The main idea in the material is that for any criminal act there is a past and a future, and that there are, or were, always options’ (Børsen et al. 1990: 1). Key here is that this distances the Council’s crime-prevention work from deterministic models that explain away freedom of choice by referring to biologically or socially determined dispositions and causes. The importance of the individual’s ability to act freely and responsibly was also the basis for a project on ‘active pupil involvement’,

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which the Council launched in the early 1980s. The objective was ‘to make the pupils responsible for their behaviour by allowing them to influence the whole day-to-day life of the school’ (1986: 3). According to the Council, pupil democracy would help to actively involve pupils. The idea was to rearrange the governance of day-to-day life in school, from control by the teachers to control by the pupils. This would allegedly enable pupils to develop greater accountability for their actions, as they would be granted a role in decisionmaking about their own daily lives. However, not only children should assume responsibility. Since the late 1980s, in particular, the Crime Prevention Council has turned to children’s parents and argued that they, together with the school, have a responsibility for ensuring that their children develop into responsible subjects. ‘Respect for others requires self-respect’, the Council writes on the subject of ‘school– home co-operation’: It is the job of both the school and the parents to give children the opportunity to develop this self-respect. [. . .] There must, therefore, be a continued expansion and development of school–home co-operation in order to involve and empower the children and their parents. (www.crimprev.dk/04b_u/41.html) This tactical orientation toward a more distanced empowerment of the children through the empowerment of their parents, and through influence on the schools’ activities and organisation was further reinforced by linking the promotion of good public health and crime prevention. It is not just that the idea of prevention stems from the field of medicine (Schmidt and Kristensen 1988). Ever since 1984, when the World Health Organization (WHO) launched its programme ‘Health for All by the Year 2000’, the Crime Prevention Council has also operated with a comprehensive plan for crime prevention in schools: Crime prevention cannot be separated from the general work in school to promote good health. In both areas, it is about helping children and young people to choose a lifestyle that is appropriate – primarily for themselves, but also for their environment. (2005: 4) Two aspects of this quote are particularly interesting. First, that children are to be governed at a distance. Direct interventions in children and young people’s lifestyles are not advocated. Rather, they are to be encouraged, helped and guided to choose an appropriate lifestyle for themselves (see also the quote above, according to which the school and parents are supposed to give children the opportunity to develop self-respect). Second, the emphasis is on lifestyles, which was one of the WHO’s focus areas – as understood from a healthcare

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perspective (healthy lifestyle), rather than lifestyle in sociological terms about e.g. subcultures. This manifested itself in the work of the Crime Prevention Council via what would become a crime-prevention mantra: ‘You don’t become a criminal if you like your life’ (www.crimprev.dk/04b_u/41a.html). The Council even developed an actual action plan for ‘a good life’, which: was inspired by the WHO’s definition of health, in which an individual who conforms with the WHO’s characterisation is unlikely to become a criminal. It was therefore the aim of this action plan to provide a situation for the pupils that promoted joint responsibility, participation and positive identity development. (1992a: Appendix 4, 7)6 The importance of the development of individual identity should be sought in the Council’s perspective shift, from objective to purely subjective criteria. According to the above mantra, the crucial factors that determine criminal behaviour are not objective (e.g. social deprivation) but the individual’s subjective experience of his or her life situation. The Council’s recommendations can therefore be described as a promotion of a special self-technological readiness on the part of the individual pupil, who is to be led to follow an appropriate lifestyle (the good life), where lifestyle is merely a generalised term for the way they conduct themselves. Finally, it should be noted that the Crime Prevention Council approach, in its focus on responsible children and young people, subscribes to a form of knowledge that, of course, no longer pivots around treatment. Instead, clear links are observable to developments in contemporary pedagogical theories and technologies, the aims of which are to create ‘competent, self-empowered and enterprising people’ (Hermann 2003: 232). Fully in line with these currents, the Crime Prevention Council recommends, for example, teaching themes such as ‘Taking responsibility for yourself and your property’ and ‘Taking responsibility for your own learning’ (www.crimprev.dk/04b_u/42a.html). SSP co-operation This focus on what constitutes a good life, and on the relationship between promoting good health and crime prevention, shows that the boundaries for crime-prevention work were abolished tendentially by the Crime Prevention Council’s recommendations. However, already in the mid-1970s, before the WHO programme was launched, the idea of action to combat child and juvenile crime, in which energies would be co-ordinated across academic and professional boundaries, was proposed: namely, the SSP co-operation, i.e. a tripartite collaboration between local authority social work and health departments (S), local authority school and leisure departments (S) and the police (P). In the SSP co-operation, primacy was not attributed to a single form of

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knowledge, e.g. pedagogy. On the contrary, it was repeatedly emphasised that the idea behind this partnership – that transcends sectors and agencies – was based on a desire to prevent crime by children and young people on the basis of a ‘holistic understanding’ (see, for example, Det Kriminalpræventive Råd 1988: 1, 5, 10). The SSP idea was linked to an idea of problematic social change, in which the general development of society was alleged to lead to rootlessness, identification problems and – as an accompanying phenomenon – criminal behaviour: Society is in a cultural, social and economic state of profound change. This process is accompanied by a break with many of the norms that the older generations still hold to and hold dear. [. . .] A significant result of both the confusion about norms and the search for collective values and lifestyle, is a categorisation of children and young people into diverse and partly fashion-based subcultures. [. . .] Children and young people find it difficult to identify with parents, neighbours (adults in general) and with the communities where they live. (1992b: 6–7) The Crime Prevention Council considered the SSP co-operation to be a solution to these problems, not least because it was conceived of as a local scheme. The individual local area, via the individual local authority, would, on its own, organise the co-operation between the various agencies so that the community’s needs were best met, and in order to close the gap between children’s and young people’s lifestyles on the one hand and the community’s (supposed) values on the other. While the Council was to ensure a very general co-ordination and offer suggestions for local activities, it recommended – as part of the emphasis on the local element – that SSP committees be set up by the individual local authorities, through which local measures could be co-ordinated, information exchanged and social workers and other professional groups involved. Overall, the Crime Prevention Council identified three main tasks for the SSP co-operation (1988: 5). The first was ‘to create a co-ordinated system that also prevents criminal behaviour’. The key here is not only that the work was to be co-ordinated. Equally important is the word ‘also’. SSP co-operation was not aimed solely at crime prevention in the strict sense, but was also to have an eye on ‘behaviour not subject to legal sanctions (bullying and other deviant behaviour)’ – in short, what are described as ‘danger signs’ (1992a: 21, 38). This considerably expanded the field in which interventions could be made on the basis of crime-prevention considerations. This was underlined by the SSP co-operation’s other two main tasks, namely: to design a system that is capable of detecting danger signs early enough to intervene at an earlier stage and more effectively, and to

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make a special effort to prevent groups with inappropriate social behaviour, including preventing criminal behaviour from taking root and growing. (1988: 5) The quote does not just indicate the marking of wider boundaries for crimeprevention intervention (or rather: non-marking of boundaries). It also refers to the preventive approach’s temporal dimension, which suggested that, in principle, measures could not be implemented too early. The more specific tasks that the Crime Prevention Council (1988: 8–9) suggested should be handled by local SSP co-operation included the mapping of crime, its causes and interrelationships with other forms of social behaviour; planning action aimed at families and children; preventive measures for children at risk; outreach/problem-based project work; disseminating information to children and young people, to parents and the public in general; information about specific forms of help available; involvement of children and young people in the planning of the local authority’s recreational activities; and co-operation on employment opportunities and crime-preventive environmental planning. Not all of these areas are relevant to this book, but I wish to highlight four elements that were central to the recommendations. First, the efforts were, in general, directed towards children, young people and their families. Second, this did not exclude special focus on more specific groups.7 Third, the SSP co-operation was part of a tactical interaction with other crime-prevention measures (information about crime prevention, environmental planning), in which the boundaries between one measure and another may be difficult to draw. Finally, as mentioned previously, the boundaries of what could be recommended in the name of fighting crime had been blurred: the inclusion of social work and health departments, school and leisure departments and the police – but also parents and the community as a whole – reflected a rejection of simple, mono-causal approaches to the problem of crime. Instead, crime was to be handled by a biopolitical machinery that strives for in-depth regulation of children and young people’s lives. It should also be mentioned that the idea of SSP co-operation has met with both strong support and heavy criticism. Support is notable at the practical level, as the vast majority of Danish local authorities have set up SSP partnerships. In other words, this is a measure in which energy has been invested in practice. The critique, on the other hand, has been directed in particular at issues related to administrative law, in that the SSP work prescribes that information is transferred between public-sector agencies that may not be entitled to disclose personal information to each other (see e.g. Koch 1988).

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Crime-preventive environmental planning: governing the community’s physical and social space From its very inception, the Crime Prevention Council focused on the material-spatial aspects of crime prevention. In 1975, for example, it argued that ‘closely related to the social preventive measures (SSP work) was the planning of the physical environment and urban space’ (1992a: 7). The social technologies that were promoted through information work and the SSP partnership, which aimed to make individuals responsible, could not, therefore, stand alone – physical-spatial technologies were also required. In fact, the physical side quickly became integrated into parts of the information work, such as the Council’s handbook on ‘technical safeguards’ (1978). This handbook provided detailed guidance on the pros and cons of certain types of locks, door frames, hinges, roofs, windows, etc., which could be used as part of efforts to prevent crime. On the whole, a great deal of energy was expended on technical recommendations – which, in purely organisational terms, were brought together under the Technical Safeguarding Committee. The Committee’s work has resulted in efforts to label objects (known as ‘Operation labelling’) and dedicated building standards for the technical prevention of violence, vandalism and burglary.8 This technical dimension of the Crime Prevention Council’s recommendations is very directly aimed at what is termed objective crime prevention, i.e. ‘measures that prevent people or property becoming the object of crime’ – for example, securing the home against burglary by locking doors, closing windows, etc. (1992a: 17).9 Although many of the technologies recommended in this field are innovative and far-reaching in terms of their potential effect upon incidences of crime, they are not of great interest within the context of this book. The underlying governmental rationality is too transparent for that: it is about a fundamental belief that it is possible purely technically – and very directly – to prevent crime. Of greater interest are the Council’s considerations in relation to what it terms preventive environmental planning which combines the promotion of physical and social technologies, not just as technical initiatives, but as a manifestation of the physical space that is designed specifically to support social communities and thereby prevent crime. What precisely does preventive environmental planning cover? One of the key contributions to this work is the Crime Prevention Council’s memorandum 13, Kriminalpræventive overvejelser om miljøplanlægning (Crime Prevention and Environmental Planning), from 1984. Described as a ‘basis document’, the memorandum was subsequently elevated to ‘the principal foundation for work with neighbourhood crime-prevention measures’ (1984: i). The deliberations were based on the background to the breakthrough for the prevention ideal in 1970: ‘Today, it is well known that, in all essentials, it is impossible to identify positive results by focusing on sanctions policy alone’

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(1984: 3). However, the overall development of society, from the 1950s to the 1970s, was also accorded a critical influence on the subsequent recommendations. This was reflected, in particular, in the focal point of the memorandum, namely the local neighbourhood. The sharp increase in recorded crime in the 1960s was thus observed from the point of view of its spatial location. Crime did not just rise. Above all, it rose in housing schemes. On this basis, the Council drew the following conclusion: From a crime-prevention perspective, in light of this development, the most obvious object of attention is the local neighbourhood. Crime fighting must primarily take the form of training the spotlight on the conditions under which people live and work, and the factors that can be assumed (indirectly) to trigger crime. (1984: 9) The memorandum proceeded systematically on the basis of this perspective. First, it identified five key ‘local neighbourhood problems’, which the Council claimed correlated with social trends. Next, it presented a range of preventive environmental planning solutions. The five problems and the series of suggestions for solving them, which also recur in subsequent Crime Prevention Council publications, are worthy of comment.10 The first such problem was ‘degeneration into slums’ in certain neighbourhoods inhabited by families that ‘experience shows have the biggest crime problems’ – more precisely, families with ‘poor living conditions’ (1984: 10, 11). It was claimed that the process of degeneration into slums consisted of such areas frightening away functional families, leaving the dysfunctional behind. The memorandum stated that the crucial problem with this trend was that these local neighbourhoods comprised similar people, i.e. people with poor living conditions. For the same reason, the Council recommended controlling the composition of the population, for example, by ‘establishing appropriate housing for population groups with different ages, incomes, etc.’ (1984: 32). The second problem concerned so-called ‘function-based localisation’, i.e. the fact that some areas were deserted at certain times of day. This was believed both to weaken informal social control – there were not a lot of people around who, by their mere presence, act as a deterrent to crime – and, by extension, to increase the fear of crime. This problem manifested itself, for example, in residential areas during the day and in shopping and business areas in the evening/at night. As a consequence, the Council’s recommendations included ensuring the existence of private homes in shopping and business areas, and that the sense of insecurity in deserted localities was to be reduced through lighting,11 and through prioritising pedestrians and cyclists rather than motorists, as the latter made less of a contribution to the life of the street (they simply disappear too quickly from the locality), as well as by placing bus stops close to buildings and the street

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grid (1984: 49–50). Related to this were recommendations for the construction of manageable environments: glass façades, low vegetation, visible paths, etc., which both made it difficult for potential perpetrators to hide and made it easier for the residents to monitor what was going on in the area (see e.g. 1996; 2001b). Combined with crime-prevention lighting, the calls for open, transparent spaces suggest a revival of Bentham’s panoptic principle. So, visibility – directing individuals via illuminated spaces – is also a vital technology of power in contemporary crime prevention. However, unlike in Bentham’s model, the asymmetry in the observation by the few of the many has been transformed, so that architecture and spatial design should now facilitate observation by the many of the few. The third problem area was a matter of a sense of belonging: a sense of belonging to the local neighbourhood is a prerequisite for a sense of security and responsibility. If the bond is weak, a feeling of powerlessness, indifference or even a directly hostile, aggressive attitude to the environment is more likely. (1984: 12) So, without a strong sense of belonging to the local neighbourhood and the community, there was allegedly a greater risk of committing crime. It was argued that this was particularly true in ‘identity-less’ neighbourhoods, e.g. those with uniform, anonymous blocks and housing schemes with unattractive communal areas. In such cases, ‘no responsibility is felt for the buildings and communal areas’ (1984: 13). In terms of actions that could, in different ways, create and support a sense of belonging and identity, the Council recommended, for example, the use of boundary markers – ‘e.g. in the form of gates, greenery or signs’ – so that it was more obvious what belonged to what and to whom (1984: 39). The rationality expressed by this suggests that, by making a distinction between inside and outside, the drawing of boundaries would contribute to the internal formation of identity. This was part of a strategic interplay with the strengthening of so-called ‘domain awareness’: the psychological core of which is the residents’ sense of ownership of the housing area as such, so that they treat it in a way that clearly shows that they care for it and will protect it from harm. They feel responsible for the area and thus feel they have the right to control what goes on in it. (1984: 40) In its basic form, this idea is not so different from the assertion of the empowerment effect of pupil democracy in schools. However, for the community, there is also a physical dimension. Through drawing boundaries,

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through marking interior from exterior, the physical-material basis is generated for the idea of possession and right(s) of usage and thus also for responsibility towards that which is owned. As another element that promoted a sense of community, the Council recommended attractive communal areas. This could be in the form of collective areas for communal eating, the creation of ‘semi-public’ and ‘semiprivate transitional zones’, e.g. front gardens, between private homes and public spaces, such that the transition felt smoother and it was easier to establish contact with others. Tables and benches at the entrances to buildings were also claimed to contribute to spontaneous meetings and thus collective identity and crime prevention (2001b: 22–3).12 The importance of attractive localities is also underlined by the fact that the Crime Prevention Council established a connection between insecurity and crime on the one hand and decaying and ugly areas on the other. This is known as the ‘broken windows’ thesis (Wilson and Kelling 1982), which acts as an implicit reference point in many of the Council’s publications. For example, the Council says that ‘[i]t is reasonable to assume that the sense of insecurity is higher in housing schemes that need renovation than in areas that appear beautiful and well maintained’ (2001b: 4). And elsewhere: ‘The level of crime and, in particular, vandalism is higher in decaying areas’ (1996: 20). For the same reason, the Council recommended that residents in blocks of flats ought to decorate their stairways and hallways, thereby rendering aesthetics a medium for crime prevention.13 In continuation of the emphasis on communal areas, high-rise buildings were advised against, as it reportedly had been shown that ‘residents in low buildings (and on the lower floors) spend more time outdoors in public areas, and on the whole use communal facilities more, when the physical and psychological barriers are smaller’ (1984: 46). Simply, building too high would practically exclude residents of the upper floors from participating actively in the communal social life.14 The fourth of the identified problems, like the second, was a variant of the local implications of dividing up according to function. Here, the crucial problem was that housing, retail trade, industry, public agencies, etc. were not necessarily located in the same place. The concern was that the local neighbourhood ends up being an area designed exclusively for residential purposes, while other facilities, in purely spatial terms, are located elsewhere. According to the Council, the consequence of this was that local neighbourhoods were rarely ‘“holistic” environments’ (1984: 14). This was alleged to have particular implications for the children of the area: ‘there is no doubt that growing up far away from workplaces and other community facilities to some extent amputates [the children’s] imagination’ (1984: 15). One way to solve this problem, according to the Council, may lie in local people exerting greater influence on the institutions located in their neighbourhoods, including kindergartens, nursing homes, etc. This influence, based on the Council’s logic, could establish closer links between otherwise autonomous

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institutions and also integrate them into the community. Another option was to plan/renovate residential areas deliberately in such a way that, to a greater degree, a so-called co-localisation occurs, i.e. a ‘mixture of housing, commercial, cultural and leisure facilities, as is known from earlier self-grown urban communities’ (1996: 10). The last problem mentioned in the memorandum – not unlike point four – was that the public-sector agencies had too many opportunities to intervene unilaterally in local neighbourhoods. This must therefore be balanced out by increased local influence and self-management, both in terms of physical transformations of the community and in relation to the cultural environment (resident-controlled sports associations, etc.). This did not mean that the public sector should withdraw completely from local neighbourhoods. Rather, the exercise of authority must take the form of ‘local services and decentralised functions’, in interaction with the community (1984: 16). As mentioned above, this local self-management and influence were a key element for the Crime Prevention Council. In this case, it was claimed to counteract impotence and therefore, indirectly, crime.15 The focus on self-management assumed a new role for public agencies. The Council recommended that the public sector act as a supervising and facilitative body, namely as ‘supportive, motivational and pedagogical advisors for citizens throughout the phase’ towards self-management (1984: 30). The public sector should, therefore, govern at a distance by leading citizens and communities to govern themselves. It was also stressed that it was a ‘public responsibility’ to establish opportunities for participation and influence (1984: 52). In other words, it was a public responsibility to activate and empower citizens and communities. This was also linked to what is referred to as social planning – which, unlike the purely physical equivalent, addressed ‘what content it is possible for the individual and for the residents collectively to put into housing areas’ (1984: 51). And it was precisely as a social technology that public agencies were to encourage residents to take responsibility for themselves and each other. This also changed the relationship between the individual working for the public agency and the local citizen. The Crime Prevention Council (1984: 62) actually talked about the importance of ‘neighbourhood professionals’, i.e. officials (in social and health administration, the police, etc.) that neither installed a (patronising) client–professional relationship – clientalisation was highlighted as a problem in several of the Council’s publications – nor were considered to be outside the community. Instead, neighbourhood professionals were believed to belong in the community and were therefore able to take better advantage of local knowledge that transcended agency boundaries.16 To illustrate that these neighbourhood professionals did not stand outside the community, but made an important contribution to it, it was important ‘that public agencies are increasingly perceived as service bodies’ (1984: 58).

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The community as a category of government Whereas the preceding section illustrated a number of examples of thinking about crime-prevention measures in Denmark, in particular via the Crime Prevention Council, this section aims to drill deeper down into the governmental rationality that characterises crime-preventive environmental planning.17 Environmental planning, in particular, shows very clearly that the Crime Prevention Council endorsed the idea that the problem of crime could be solved by boosting the community. As will be seen, this is not an innocuous idea. On the contrary, the figure of the community or local neighbourhood (in Danish, these terms are more or less synonymous) installs new frameworks for government, and therefore also for the relationship between individual and society. The Crime Prevention Council defined the community element of preventive environmental planning as: the effect on people’s individual or collective lives, including the opportunities available to them, within local boundaries defined as the neighbourhood, the extent and design of which (e.g. with respect to population density) may vary from place to place, but which is subjectively experienced as a relevant unit by the individuals concerned. (1984: 18) Crucially, the local neighbourhood was not just an expression of a physical demarcation. It was just as much a social unit, to which the individual, it was claimed, felt a sense of belonging, identified with and constructed his or her identity around.18 And it was this sense of belonging that was described as being under pressure. ‘People’s social bond to a local neighbourhood has blurred [since the 1960s]’ (1984: 7). For this reason, crime-prevention measures should be aimed at actively (re)constructing the community and its identity. It is not the individual, socially deprived or otherwise, that was addressed here by the communitarian-inspired crime prevention, but the individual’s immediate environment, the identification framework that lies one level above the family and the primary social relationships. Before discussing this part of the crime-prevention programme in greater detail, it is important to highlight a constructivist critique of the very foundation of the idea of the community. As already indicated, the Crime Prevention Council considered the community to be a quasi-natural entity that mediated between the individual and the society and to which an independent reality was attributed. In brief, the community was claimed to exist as an indisputable social entity, albeit faced with poorer conditions under late modernity. In contrast to this picture of the community, I subscribe to Rose’s point that the community is no more or less a natural and independent reality, but rather a construction that serves specific governmental purposes (1999: Ch. 5).

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The Crime Prevention Council, through the promotion of the community, sought to cultivate a series of virtues and positively charged categories: the collective, self-grown urban communities, responsibility for their own and other people’s lives and for the community, social order, self-management, strong sense of belonging, identity, security, the environment, domain awareness, etc. However, there is more going on than these concepts, taken from Council materials, would initially suggest. As the urban theoretician John Pløger stresses, the community is, above all, a ‘moral/ethical-oriented collective that is about the binding and self-regulating social life’ (2002a: 63; see also Rose 1999: 172). The moral aspect shows up in two ways in this governmental perspective. The first relates to the problem for which crime prevention was posited as a solution: the welfare state is apparently incapable of regulating the crime problem satisfactorily, which is why it is incumbent on individuals to enter into binding collectives with the other residents in the community. Through this, the communities are thought to develop into moral entities, which place constraints on the residents. This seems to be the surest way to avoid crime and other antisocial behaviour. The moral aspect is also revealed in the fact that the actual manifestation of the physical space prescribes certain types of acceptable behaviour. The functional design of space – in collectives, allotments, playgrounds, footpaths, cosy corners, etc. – quite simply organises ‘the morally decent and predictable everyday life [. . .] The spatial field predisposes certain actions and thus prescribes the social space’ (Pløger 2002a: 67). In brief, this is what Pløger, drawing on Paul Rabinow, describes as ‘the idea that the form can specify the norm’ (2002a: 67). The idea of the community stands strikingly unchallenged in the thinking about crime prevention. A 1991 memorandum from the Crime Prevention Council, which was supposed to take stock of, and update, the Environmental Planning Committee’s work and basic philosophy, placed even heavier emphasis on ‘the strengthening of the local environment’ (1991c: 3, 9 ff.). The Crime Prevention Council has not itself found occasion to scrutinise the strong promotion of the idea of the community in its work, but what blind spots are associated with this particular approach to crime prevention? What is it that the Council does not see when it observes communities as a key solution to the problem of crime? Two aspects, which are to some extent related, are highlighted below. One concerns the very idea of the community that underlies the Council’s recommendations, while the other is about the inclusion/exclusion effects of governing through community, to borrow Rose’s phrase (1999: 176). The Crime Prevention Council builds a certain picture of the community into the concept of crime prevention. More precisely, the Council basically operates with a juxtaposition of modernity and communities. As illustrated several times above, communities are claimed to be under pressure due to – in Niklas Luhmann’s terms – the functional differentiation that breaks the

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self-grown community’s proximity and co-location of functions. The Council is concerned with the consequences of this development – in other words, with the community’s alleged (tendential) dissolution under modernity or, rather, under the accelerated modernity that is claimed to have taken place since the 1950s. The differentiated nature of contemporary society, it is argued, is simply incapable of providing stable collective patterns. It is too fragmented for that, both functionally and spatially.19 And as the community withers, so too does the individual’s identity (which is claimed to be closely linked to the community), while rootlessness and meaninglessness take hold. It is the assertion of this almost constitutive binding of the individual to the community that is so fundamental to the idea of crime-preventive environmental planning. It shows up, for example, when modern society’s sense of belonging, which is not rooted in communities, is described as superficial, and when it is stated that: ‘More than half of the country’s households now consist of only one or two people. This must mean that a greater need arises for joint activities and social facilities in the local neighbourhood’ (1984: 24, italics added). It is, then, a premise for crimepreventive environmental planning that individuals need the collective of the community and that strengthening the community therefore strengthens individuals and in doing so reduces crime. However, this is precisely where it is advantageous to present the contingent and constructed aspect in that which is described as natural. It is at this point that the first, crucial, blind spot appears in the idea of the community. Where the Crime Prevention Council asserts – and makes a problem out of – a dichotomy between modernity and collective spirit in the community, it is possible to point out alternative ideas that do not problematise the fragmented nature of collectives in modern society. Parts of current urban theory, for example, argue that the city is precisely a place for collectives that are not tied to the local neighbourhood. On the contrary, these collectives transcend geographical boundaries, are robust and work well in spite of this. Pløger therefore concludes that: A community need not be constituted through joint ‘being’ – shared values, norms and needs. An urban community can arise because, for one reason or another, situationally or contextually, people have something in common, because they are, so to speak, in the same place at the same time for the same purpose or based on similar interests. Collectives emerge and develop through something shared, but this does not necessarily endow the collective with any common meaning or value horizon. (2002a: 72; see also Maffesoli 1996a; 1996b) To put it bluntly, the promotion of the community in crime-prevention work assigns primacy to a particular idea of the collective, which in its basic form stands in opposition to the diversity and fragmentary aspects of

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modern life. In other words, crime-preventive environmental planning strives for identity, whereas modern society – according to Luhmann and others – is based on difference. It is not my intention here to rule on the dispute about which perspective is correct. I am more interested in the implications of the weighting of the community in crime-prevention work. More precisely, the focus is on the inclusion/exclusion effects of promoting collectives. What implications does it have that the Council operates with this quite specific, identity-determined understanding of the collective? The answer to this question exposes the second blind spot in the crime-preventive community idea. First of all, it is obvious that the governmental strategy aims to eliminate exclusion through inclusion. If the citizens form part of a strong community, the assertion is that this will lead to a reduction in crime. However, the Crime Prevention Council’s recommendations primarily lay the ground for the inclusion of a particular type of individual, namely those who let themselves be subjectified as bound (in terms of identity) to the community. In other words, it includes the committed individuals who actually make an effort on behalf of the community’s collective. Or, more precisely, the ideas of the community that are promoted are designed to provide the basis for inclusion of this type of subject, who is thus constructed via the concept of responsibility for the local collective. It is, then, this very figure that creates the conditions for inclusion and installs a moral imperative in individuals to take part in the community, via the community’s care of the elderly, schools, sports clubs, leisure clubs and general interaction at street level, etc. It is through the physical participation in residents’ associations, clubs, etc. that the individual shows his or her active joint responsibility for the community’s well-being – and therefore acts in the spirit of crime prevention. Whichever way one looks at it, inclusion in the community goes hand in hand with the subjectification and normalisation of individuals as active and responsible. However, this linking of subjectification and inclusion also points to exclusionary implications. What happens to people who do not get involved at local level, who do not want to take any part in local collective responsibility? The Crime Prevention Council does not seem to consider this a potential problem. Its belief in the potential naturalness of the collective is too strong to envisage this. Yet the question is, whether the promotion of selfmanagement, domain awareness, the collective, collective responsibility, etc., as virtues – that is, as moral attributes and categories – paves the way for stigmatising and exclusionary practices against individuals who do not follow the Crime Prevention Council’s recommendations. How will individuals who align themselves with the local moral collective consider individuals who consistently choose to stand outside of it, e.g. because their own collectives (family, friends, colleagues) function well outside of, and independent of, the local neighbourhood?20

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Prophylactic power: totalitarian risk management The idea of crime prevention is interesting above all else because it offers itself up as a response to crime that it is impossible to disagree with or argue against. As obvious as it may seem that offenders should be punished if they break the law of their own free will and that sick prisoners should be treated, it seems equally evident that it is better to prevent crime than subsequently impose sanctions through punishment and treatment. In addition, crime prevention, qua its preventive nature, seems to possess an advantage that neither punishment nor treatment possesses. Where these reactions are claimed to cause new crime (through stigmatisation, knowledge being passed from criminal to criminal, etc.) – and thus contribute to the problem they were put into the world to solve – well-proportioned crime prevention seems to be an ingenious catch-all solution (Schmidt and Kristensen 1986: 199). In addition, prevention is a mode of tackling the crime problem that can be implemented without any therapy whatsoever, and without so much as touching a hair on the head of a single criminal. And yet, in this final part of the chapter I wish to pick up on three of the recommendations described above, and use them as background to discuss the question of the limitations of crime prevention. Does the prophylactic approach allow any possibility for transgression or excess, or does crime prevention in principle know no limits? As I will argue below, the idea of crime prevention exhibits features that mean it can be reasonably characterised as a tendentiously totalitarian biopolitical endeavour. The first of the crime-prevention recommendations to be revisited are information about crime prevention and SSP co-operation. The previous chapters highlighted several examples of the idea that governing children and young people before they go down the path of crime is the key to regulation of the problem. Several crime-prevention recommendations that illustrate this point have been described above. The new and crucial aspects of the Crime Prevention Council’s recommendations lie not, therefore, in the idea as such, but in the technologies prescribed and in the governmental rationality that they jointly reflect. As such, the information about crime prevention and the SSP work constitute proposals for prevention, in which the school and family act as conduits or focal points for the government of children and young people’s behaviour. By incorporating crime prevention into educational and teaching contexts, the idea is that children will be trained to be active and responsible subjects. It is therefore firmly stated that it is schools and parents that are responsible for ensuring, through their behaviour, that children refrain from (i.e. choose not to commit) crime. However, for three reasons, this is different from (and more than) simple training in law-abiding behaviour. First, the work does not just address crime as such, but all of the danger signs that might point toward crime and other antisocial behaviour, which expands the areas addressed to quite an extreme degree. Second, the local SSP co-operation is designed to co-ordinate preventive action at official level,

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which links together perspectives that have fundamentally very different approaches to crime: on the one hand, the police, whose relationship is direct; on the other hand, schools and social work and health departments, where the work is usually only indirectly linked to crime, but where a link is nevertheless made to crime-prevention regulations. Finally, this linking together and breaking down of the barriers between schools, health and crime are explicitly hammered out in the intertwining of health promotion and crime prevention, as established through the concept of ‘the good life’. The inclusion of health, in the broadest sense, in the assessment of the risk of crime not only paves the way for an entirely new field of knowledge of alleged criminological interest, but also for infinite intervention. Crime prevention here seems unconstrained by limitation because, in principle, it can be directed at any aspect that connects individuals with an unhealthy lifestyle. The next crime-prevention point of reference, one that marks a break with previous problematisations of crime, is the recommendation regarding the design of physical space. The Crime Prevention Council was not the originator of the connection between crime and space. Previously, however, in Denmark, the relationship was primarily observed in the light of the distinction between town and country, where the town was claimed to represent a higher level of crime (see e.g. Hurwitz 1948: 254 ff.). However, in the United States, from the early twentieth century, a comprehensive theoretical apparatus was developed for the understanding of urban development and crime, especially around the Chicago School. Later analyses, which would have a major impact on the Danish discussion, include Jane Jacobs’ The Death and Life of Great American Cities (1961) and Oscar Newman’s Defensible Space (1972), both of which contained recommendations for better urban planning with crimeprevention effects. Newman’s book, in particular, became a fixed reference point in crime-preventive environmental planning in Denmark. Indeed, it is also not until the idea of crime prevention emerges that it is suggested that the problem of crime might be addressed by means of subtle manipulations of physical space. In this context, it is not only claimed that crime is preventable through better physical barriers such as locking systems, grating, etc. The more interesting aspect of crime prevention is the attempt, via spatial manifestations, to simultaneously regulate time and space, in the form of flows, movements and rhythms – the scope, speed and intensity of which it is thought possible to govern by means of environmental planning. An example of this can be seen in the Copenhagen Metro stations, where there are no benches, only handrails on which to lean. ‘In this way, it is hoped to avoid spaces where the unemployed hang out with their huge dogs and beers’ (Møller 2002: 1). These individuals are therefore led through and away from the space, which is thought to reduce both the likelihood and the fear of crime. This is not a matter of a regulation of action through intervention in the individual’s body, mind or psyche (through, respectively, sterilisation and psychiatry) nor a change to the person brought about by traditional means of

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restricting his or her freedom of movement (through isolation or incarceration). Rather, it is a form of government that is used to condition the individual’s movements in freedom. While parts of this spatial technology of power aim to lead individuals away from items that could become the object of crimes, an equally important part endeavours to regulate interactions between individuals. Or, more precisely, several recommendations about spatial manifestations are aimed at avoiding certain types of interactions taking place at all.21 When this is the strategy, when the objective is to prevent the possibility of interactions that could result in crime, then it again becomes difficult to determine the boundaries of the crime-prevention work, as does this not again pave the way for an (in principle) infinite project? The third and last of the crime-prevention recommendations to be picked up on is the community’s status in crime-preventive environmental planning. The point of the local collective is to encourage the integration of those individuals in modern society who, it is claimed, are particularly susceptible to rootlessness, meaninglessness, etc. This integration, based on common values and shared responsibility, is believed to have a crime-prevention effect. The technological means of promoting the community entails an intimate interaction between physical and social planning, in which the management of the physical-material space is assumed to contribute to the strengthening of the social space, i.e. the local collective. However, this must also be promoted through social technologies, e.g. aimed at self-management. The community occupies a paradoxical status in crime prevention (see Rose 1999: 167–8). On the one hand, it is ascribed an extra-political, ontological status, namely as a self-regulating and quasi-natural unit between the individual and society which has been weakened under modernity but which, nevertheless, has its own independent dynamics. As mentioned previously, a constructivist perspective has to challenge this natural character. On the other hand, the community is elevated precisely to the status of a crucial (crime-) policy instrument of government, namely as the object to be promoted in order to solve the problem of crime. When overall social planning has failed, and belief in treatment of the individual has been discredited, the idea of the community offers a third way. In this sense, the community is presented as a category that falls both within and outside political government. It is at once posited as both an ontological category and as epistemology, as a way of thinking about the government of the crime problem. Pløger describes the idea of the collective in urban planning as a ‘utopian idea’ (2002b: 2). Accepting Niklas Luhmann’s (2012) diagnosis of modern society as functionally differentiated – i.e. divided up into a number of parallel systems of law, politics, art, science, etc. – efforts to bind individuals to local collectives do indeed appear utopian, because they seem to ignore diversity, i.e. that people’s values and ways of life cannot be fitted into planned frameworks and programmes. Normative supporters of functional differentiation, like Luhmann, see it as a bulwark against totalitarian forms of social

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organisation (see Borch 2011), and from such a perspective, the idea of the local collective may actually be observed as a dystopian one, since it seems to force an identity upon the diversity that characterises each individual’s values, lifestyle, etc.22 The promotion of the community thus corresponds to the reintroduction of a segmental form of differentiation – i.e. a division of society into smaller self-governing units that look after the needs of all individuals – which acts as a counterweight to, but also a parasite on, the functional differentiation. This has particular implications for the understanding of the individual’s individuality. In the segmentally differentiated society, the individual is defined by adherence to a particular caste, clan or similar. By contrast, modern society’s functionally differentiated order frees the individual, as their partial and momentary connection with the various functional systems allows the individual the possibility of defining his or her individuality himor herself (Luhmann 1989). Although this possibility can, of course, also be interpreted as a burden, it is my assertion that the promotion of the collective – and duty to it – threatens to negate the advantages of the functional logic. Quite simply, that which is gained from the division into distinct systems is threatened by the ambition of cultivating the identity of the community, and the liberation of the individual is threatened by the moral requirement to be bound to the collective. However, it is not only the points outlined above that suggest that the idea of crime prevention seems to be linked to totalitarian endeavours. In this argument, the implications of the form of power orchestrated by prophylactic intervention are equally crucial. The analysis by Robert Castel (1991) serves as an excellent source of inspiration when it comes to understanding the changes brought about by preventive power. Castel deals with preventive techniques in general, which does not preclude that the changes he describes can also be highlighted to illustrate the current crime-prevention situation in Denmark. Castel makes a distinction between dangerousness and risk, and uses this to diagnose the transformation from earlier preventive measures to modern recommendations. The preventive techniques prescribed in the early twentieth century were based on the idea of dangerous individuals. In these, danger was basically a matter of the inherent properties of a specific person or group of persons, even though these characteristics perhaps remained latent. An example of this type of hazard is Lombroso’s figure of the born criminal – a concept that, at one and the same time, ascribed to the individual in question a special ontological status (dangerous, criminal) and underlined the probability of the individual’s actual behaviour in the future (dangerous, criminal). To put it bluntly, ontology and probability projection, present and future, were convergent (see also Castel 1991: 283). In this perspective, crime prevention mainly took the form of incarceration (possibly combined with moral education). By contrast, eugenics and sterilisation/castration constituted more radical approaches to prevention. Although the starting point here was the danger that the individual represented, the intention behind the

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preventive measures went far beyond the specific individual. Above all else, they were aimed at the race and at future generations (1991: 285). According to Castel, it is this understanding of dangerousness – associated with specific individuals – that has undergone a transformation since the 1970s. Crucial to this movement, he says, is that the concept of risk has become detached from the dangerousness of the individual: A risk does not arise from the presence of particular precise danger embodied in a concrete individual or group. It is the effect of a combination of abstract factors which render more or less probable the occurrence of undesirable modes of behaviour. (1991: 287, italics in the original) Transferred to the Danish concept of crime prevention, this means that the fight against crime ceased to focus on the specific criminal who, because of a mental or social disposition, was particularly likely to end up in crime. Drawing on the idea of the normal criminal, a comprehensive attempt was made instead to prevent situations arising that – due to certain factors, e.g. poor locks, inadequate lighting, lack of emergency exits, etc. – could be characterised as risky. Nor were the means of combating crime, therefore, in-depth therapy, based on long-term interaction between the criminal and a professional therapist. Rather, the war was waged through an overall analysis of risk factors, from which tangible initiatives in specific localities could be deduced. It ought to be superfluous to add that the expertise related to crime prevention therefore does not – as under the treatment ideal – consist of psychiatry, but of architectural theory, urban planning, principles for SSP co-operation, etc. According to Castel, this shift from individual dangerousness to risky situation has major implications: this generalization which indicates the shift from dangerousness to risk entails a potentially infinite multiplication of the possibilities for intervention. For what situation is there of which one can be certain that it harbours no risk, no uncontrollable or unpredictable chance feature? The modern ideologies of prevention are overarched by a grandiose technocratic rationalizing dream of absolute control of the accidental, understood as the irruption of the unpredictable. (1991: 289) The idea of crime prevention installs this possibility of limitless intervention because, in the name of crime prevention, almost every aspect of life can be regulated. Nothing is too small, everything is a potential risk that can legitimise government. And this is even organised explicitly as a holistic intervention, one which, at one and the same time, covers information,

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co-operation that transcends official agencies, design of physical space, health promotion, promotion of local collectives, etc. Crime prevention can certainly be regarded as the exercise of power, as it aims to condition action through action. Its ambition is precisely ‘to structure the possible field of action of others’ (Foucault 1982: 221). Further, it is, to a very high degree, a form of biopolitical power, since crime prevention aims to govern forms of life, lifestyles, health, movements, etc. – in short, all dimensions of life as it is lived. The solution to the problem which crime prevention allegedly offers is therefore linked to an (in principle) all-inclusive and limitless power: a tendentially totalitarian biopolitical power. This is also emphasised by LarsHenrik Schmidt and Jens Erik Kristensen: An ideal is made out of the perfect order which monitors and prevents any potential disorder before it occurs. In all its care about the lurking dangers and pitfalls inherent in existence, this way of thinking becomes tendentially totalitarian – including when it is manifested in softer forms of ‘networking’, collaborations between schools, social services and the police (SSP), etc. It is, in fact, in all its abstractness, about controlling and regulating possible forms of behaviour and existence and ridding the world of uncontrollable elements before they become a problem. (1988: 58, italics in the original) The question of to what problem prevention was proposed as the solution cannot be answered by referring exclusively to the normality of crime. As Castel’s analysis shows, there is also an independent, but related, element of risk at work. More precisely, it is about the fact that the normality of crime generalises the risk of crime. In this conceptual universe, crime becomes a damage that can be calculated and attributed to the potential victims’ decisions (see Borch 2011: 98–102). As a result, crime is not just something to which someone is exposed (a danger), it is – to just as high a degree – something to which people expose themselves – by not closing windows or locking doors, by walking down dark, covered pathways, etc. It is against this generalised picture of the problem of risk that crime prevention is presented as a solution.23 At the same time, tendentially totalitarian biopolitical crime prevention differs from that which is commonly understood by totalitarianism. In the latter, the state usually assumes responsibility for dealing with identified problems, whereas generalised risk is embarrassing for the state. The state can intervene against identifiably dangerous individuals but it does not, in colloquial terms, have the power (or the necessary knowledge) to regulate the factors that produce specific criminogenic, i.e. risky, situations. In the crimeprevention variant of biopolitical-totalitarian power, responsibility for managing risk is, therefore, transferred to the individual. The shift is implemented via the construction of a new subject, the potential victim, who

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not only has to be made active and to act responsibly but, above all, must act carefully. Following the work of Pat O’Malley (1992; 1996), it therefore makes sense to talk about the emergence of a decided prudentialism, a privatised risk management, which is promoted as the rationality that everybody should embody in their daily lives and activities. The crime-prevention governmental rationality is a striking example of the kind of control analysed by the French philosopher Gilles Deleuze (1995). Deleuze argues that the disciplinary form of power that Foucault, in particular, connected with the eighteenth and nineteenth centuries has, since the Second World War, been replaced by control. Where disciplinary powers aimed to put individuals on the right path and normalise them in institutions (asylums, factories, etc.), and where the individual’s life took the form of a continual alternation between such institutions, control – not to be confused with the concept of social control (see Rose 1999: 238, n. 7) – is characterised by its independence from institutions. Rather, the efforts to implement control exist everywhere that criminal and antisocial behaviour could potentially take place. As Nikolas Rose puts it: In our societies of control, it is not a question of socializing and disciplining the subject ab initio. It is not a question of instituting a regime in which each person is permanently under the alien gaze of the eye of power exercising individualizing surveillance. It is not a matter of apprehending and normalizing the offender ex post facto. Conduct is continually monitored and reshaped by logics immanent within all networks of practice. Surveillance is ‘designed in’ to the flows of everyday existence. The calculated modulation of conduct according to principles of optimization of benign impulses and minimization of malign impulses is dispersed across the time and space of ordinary life. (1999: 234, italics in the original) Although, as mentioned in the initial discussion of Foucault’s analytics of power, care has to be taken not to diagnose society on the basis of a single form of power, it seems obvious that the Deleuzian control concept captures an important aspect of the exercise of power that is prescribed in the name of fighting crime. The problem of crime is no longer to be solved by the correction of individuals in institutions or through other forms of sanction. Rather, the crime-prevention is about disseminating control strategically so that it follows everybody everywhere in day-to-day life. As touched on previously, the totalitarian tendencies observable in this shift do not reflect state ambitions of centralised power – in general, the intent is not to exercise power by concentrating it. On the contrary, crime prevention is about breaking down traditional boundaries and roles and promoting identity rather than difference. It is, in this way, about including every aspect of life and attempting to control everything that might happen.

Chapter 6

Empowerment and repression

Revival and innovation One of the strengths of a historical problematisation analysis is that it not only identifies breaks, but also connections and continuities, and allows for renewed scrutiny of older themes. Chapter 5 was about one such ‘revival’, namely the revival of the idea of a virtually limitless crime prevention that had been espoused in his day by Christian Geill. In this chapter I discuss another revival, that of the treatment ideal. Since the early 1990s, the idea of has again gained momentum, and proposals for the therapeutic of criminals have once more become legitimate. The chapter will address five recent suggestions for better ways to approach the problem of crime. Four of these refer to sanctions. These consist of the use of youth contracts for 15–17-yearold offenders and three different examples of the return of the treatment ideal – cognitive skills training for inmates and two types of treatment for criminal drug abusers in prisons (contract prison wings and what is referred to as the ‘import model’). By comparison, the fifth and final approach to the problem of crime is more preventive in nature: community policing. The reasoning behind this specific type of policing is that crime should be dealt with through a partnership between the authorities and the communities that are constructed and activated for the purpose. The study of the five examples of current trends is broken down by their technological dimensions. In other words, instead of, for example, discussing the new treatment recommendations in an overall manner, I begin by focusing on the idea of government by contracts, as prescribed in the debate on youth contracts and contract prison wings for drug abusers. The chapter will then turn to the second idea concerning the treatment of drug addicts – the import model – and the idea of cognitive skills training for criminals. My contention is that, in both cases, the techniques prescribed seek to elevate the individual offenders’ self-relations to the pivotal point of the treatment, and strive for an empowerment of the criminal, who is to be made capable of, as it were, treating him- or herself. Finally, the chapter will address community policing, which can also be seen as a recommendation in favour of empowerment technologies – in this case, empowerment of the community.

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As this might indicate, these examples are also variants of advanced liberal rule, and so the examples in this chapter should be viewed in the context of the movements mapped out in the previous two. However, the recommendation of youth contracts, in particular, shows that advanced liberal rationalities of government also ally themselves with neo-conservative elements. The result is a peculiar hybrid of rationalities of government, as discussed at the end of the chapter. The return of the treatment ideal: governing through contracts Discredited in the 1960s and 1970s, the treatment ideal has enjoyed a renaissance since the early 1990s. Prison governor Bodil Philip has even said that we are witnessing ‘the start of a new era, in which the prison system will again start to find space for treatment programmes’ (2001: 110). From the 1940s until the 1960s, the treatment ideal concentrated on psychopaths and young people. However, in the 1990s the focus was mainly on drug addicts and alcoholics, who have been characterised as ‘misplaced in the penal system’ (Storgaard 1999a: 19). These groups are, of course, not new. However, as per the critique of early treatment ideals, in the 1970s the principle was enshrined that treatment was not the job of the prisons. Punishment and treatment were to be separated completely. With the exception of acute illness and less serious cases, treatment was not to take place within the frameworks of the prison service, but rather ‘under the auspices of the general social system’, where the treatment could be provided without the allegedly aggravating effects of incarceration (Report 1975: 24). It was this basic principle – known as the normalisation principle1 – that seemed to lose ground in the 1990s. The new trend towards a revival of the treatment ideal appears to be a solution to several problems at the same time. Above all, increasing attention was paid to the fact that the groups to which external treatment was to be offered seem to have a particularly intimate relationship with crime, e.g. drug addicts and alcoholics. For example, of the drug problem, it was said that: The penal system and drugs are connected by multiple threads. Firstly, drugs are the object of crime, since dealing in them is punishable. Secondly, there often seems often to be a cause–effect relationship between drug addiction and crime. Procurement of drugs requires – because of criminalisation – more money than most addicts are able to obtain legally. (Storgaard 1999b: 7) This picture was reinforced by studies showing that many offenders had substance-abuse problems (drugs or alcohol) and/or suffered from mental illness (see e.g. Koch 1995: 18). At the same time, it was doubtful whether

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these groups of people actually used the treatment available outside of the prison service, even if they had the right to (Storgaard 1999b: 9). It was in this light that treatment within the frameworks of the prison service was again presented as an important contribution to solving the problem of crime, and one that could be realised in different ways. One option was to design internal treatment programmes that could be combined strategically with one of the prison service’s main tasks, in addition to providing control and security – namely, to ‘support and motivate the offender, through personal, social, professional and educational development, to live free from crime’ (Kriminalforsorgen 1993: 9). This is exactly what happened with the variant of treatment known as ‘the contract’, which involved so-called contract prisons/prison wings. In early 1989, the Directorate for the Danish Prison and Probation Service set up a working party to study the potential for a pilot scheme, based on Norwegian and Swedish experiences, for contract prisons/prison wings in Denmark. These prisons or wings were designed for criminal drug addicts who needed extra help if they were to escape their addiction and refrain from crime. ‘The contract’ was seen as a way of providing this help/treatment without the Prison Service getting into too much of a clinch with the normalisation principle. More specifically, the idea was to set up: wings where (1) the inmate is committed to being drug-free during the prison term and to taking an active part in the treatment provided; and (2) there is a commitment to creating a framework and content for the sentence that best supports the prisoner’s decision to stop taking drugs. The overall objective of a contract prison wing is that the inmate, upon completion of the sentence, will live a crime-free life and will have ceased the abuse or, alternatively, be motivated to continue treatment. (Direktoratet for Kriminalforsorgen 1991: 35, italics in the original) The objective shows that the main priority was the reduction of recidivism. The recommended means of achieving this was a mutually binding contract between the inmate and the prison wing, hence, of course, the name ‘contract prison’. The working group’s recommendation formulated the detailed content of the contracts as follows (‘I’ and ‘me’ refers to the convicted person): The contract prison wing offers: 1 2

a chance to serve sentences along with others who are also willing to stop taking illegal drugs and non-prescription medicines; a chance to serve sentences in a specially designed wing with the potential for individually tailored education, work training, recreational activities, etc.;

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3 4 5

individually tailored support and care designed to strengthen the inmate’s desire to stop the abuse; a high degree of autonomy with the option of collective activities, e.g. in the form of sports, etc.; individually tailored help and support to draw up and implement plans for the future.

I undertake: 1 2 3 4 5

to refrain from any use of illegal drugs and non-prescription medicines; to submit urine samples as demanded by the staff; to participate actively in the work/teaching and in the wing’s other planned activities; to take an active part in the treatment available; and otherwise to comply with the rules and guidelines that apply to the wing.

I agree that: 1 2 3 4 5

any breach of the contract will invariably have consequences. The use of illegal drugs and non-prescription medicines will inevitably lead to immediate expulsion from the wing; visitors, prior to visiting the department, will be informed of the contract wing’s objectives, etc.; a visit may be refused, or a staff member may insist on sitting in on the entire visit, if it is suspected that a visitor will smuggle drugs into the wing; the wing may refuse me release on temporary licence if the staff think that it might result in the risk of relapse into drug abuse; the wing administers the allocation of extra freedoms, e.g. extra accompanied or unaccompanied release on licence, on the basis of individual treatment considerations. (Direktoratet for Kriminalforsorgen 1991: 101–2)

The excerpt above includes a number of elements that are central to the rationality of this approach to the government of crime. First and foremost, all drug addicts who want to serve their time in the contract wing are assessed as suitable or, more precisely, motivated. The ward is intended as a motivating factor in itself – a place where the sentence can be served under more pleasant circumstances than usual – a factor enhanced by concentrating similarly motivated inmates in the same place. In addition, an understanding is inculcated that the wing only works if it is a collective project, as emphasised by the focus on active participation. Each inmate makes a commitment to participate actively in both his or her own treatment and the collective

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activities. The autonomy offered by the prison therefore entails an obligation to actually carry out all of the allocated tasks. Finally, consequences are a key aspect. The version of the contract prison model used in Norway placed great emphasis on ‘impact pedagogy’, a method devised by the Training School in Amager (Copenhagen, Denmark). The working party’s recommendation included, as an appendix, a memorandum about the Training School’s teaching methods, which were aimed at maladjusted young people who usually also had addiction problems. Impact pedagogy is based on the assumption that individuals – addicts or not – are independent and responsible. Everyone is accountable for his or her actions – and not least, the consequences of them – because there is no such thing as an absolutely imperative choice. In a sense, this marks a reunion with the metaphysics of free will. The Training School also aims to teach its students to become responsible individuals with freedom of choice. The pedagogic means to do so is to show the students that their background does not interest the school,2 and that ‘negative behaviour will have negative consequences’ (Direktoratet for Kriminalforsorgen 1991: 92). The form of power operated here is tied to negative sanctions, and the exercise of this power is presented as a pedagogic tool. The intention of the sanction is not to teach the student the right way to behave. However, the sanctions serve indirectly to make the student aware of the consequences of certain actions. As a result, the school is entitled to expel students in cases of abuse, aggressive behaviour, etc.: not as a punishment, but in order that the student might understand that any responsible person learns the consequences of his or her actions and in doing so stops being a burden on others because of them. By stipulating expulsion from the school as a known consequence, a break is made in the student’s pattern of behaviour. This break provides the student with an opportunity to ask him- or herself whether the action was appropriate – this is what is learned. (Direktoratet for Kriminalforsorgen 1991: 92) The working party did not agree with impact pedagogy en bloc, but did find the element that deals with breach of contract by the inmate valuable. Although impact pedagogy was therefore ‘far from capable of standing alone in a contract prison wing’, the recommendation of this treatment model did imply support for the idea of promoting responsible behaviour through sanctions (Direktoratet for Kriminalforsorgen 1991: 37). The actual treatment element itself was only sparingly described in the working party’s recommendation. Instead, the wording was left to the individual wing. However, the working party did emphasise the need for close contact between inmates and staff in the wing, in order, for example, to help the inmates during the withdrawal phase and maintain their motivation to continue with the treatment. For the same reason, each inmate should

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have a staff contact person whose responsibilities include the inmate’s condition and treatment plan.3 Each inmate should also have an external supervisor with ‘knowledge of, and appropriate training in, group-dynamic processes, psychological development and conflict resolution’ (Direktoratet for Kriminalforsorgen 1991: 39). The supervisor should be involved in what were referred to as triangular interviews with the inmate and the contact person that should take place once every one or two weeks. The supervisor’s function was to support not just the inmate, but also the contact person. Since the working party’s recommendation was light on detail regarding a number of points, several aspects of the prescribed approach can be encapsulated in an observation of a specific contract prison wing at Ringe State Prison, which has been described as ‘the most advanced example of its type in relation to the development of treatment’ (Storgaard 2001: 131). The description of the model in Ringe does not just map practice but also serves as a description of a practical application of the treatment ideal for others to follow. In particular, there are two interesting aspects to the wing in Ringe: its meetings and its seniority-based system of rights. In addition to the triangle interviews, three types of meetings are held. The first type consists of weekly meetings, which all inmates and staff who are at work have a duty to attend. Contrary to the system prescribed by Stürup, in which the staff co-ordinated collective efforts, the inmates are involved in discussions about the coming week’s programme, the weekly evaluations, etc. This is intended as a technological element ‘of a process in which the inmates initially learn to share responsibility for day-to-day life in the wing’ and thus contribute to the collective (Storgaard 2001: 127).4 The next type of meeting is known as a ‘five-point round’. At these meetings, which are held every other week: all inmates and the two officers on the daytime shift that week evaluate themselves and the others based on the following five points: language, mood, work effort, initiative and interpersonal skills. [. . .] The person whose turn it is speaks about him- or herself in relation to all of these points. (Storgaard 2001: 127) Here too, the individual inmate’s treatment depends to a high degree on his or her own self-relations. The inmates confess publicly and analyse themselves and the others. This self-image is contrasted with others’ views of the individual concerned. Through this process, the inmates process their relationships with themselves and others. The last type of meeting takes place in local Narcotics Anonymous groups, where inmates meet with role models (former addicts who are now drug-free) and various types of follow-up after release can be arranged. These groups are a drug-related equivalent of Alcoholics Anonymous, which makes up an important aspect of the Minnesota Treatment described below.

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The second interesting aspect of the contract wing in Ringe is its division of inmates into three groups – newcomers, juniors and seniors – based on length of service. The seniority principle installs a hierarchy on top of an otherwise flat structure. As a newcomer, you do not have as many rights and duties as juniors and seniors. Juniors are required ‘to act as a “big brother/ sister” to a newcomer. In other words, they take care of newcomers, talk to them, show them round and talk about practical issues, show care and concern if they have withdrawal symptoms, etc.’ (Storgaard 2001: 128). Seniors are consulted when inmates apply for places in the contract wing. The seniority principle is an extension of the self-management idea, by which internal role models are appointed among the inmates and take charge of some of the tasks that would normally be the duty of the staff in a traditional prison setting. Youth contracts Youth contracts are another example of the breakthrough made by the contract in the field of crime policy. The idea of contracts for young offenders took shape in the Report on Juvenile Offenders presented by a working party under the Ministry of Justice in 1988. The primary issue that youth contracts were intended to address was the assertion that 15–17-year-old criminals were not made to face the consequences of their actions to a sufficient degree and thus failed to develop a satisfactory sense of responsibility.5 According to the rules at the time, young offenders who had committed minor offences such as theft and vandalism could be given suspended sentences or conditional discharges. Discharges were often combined with conditions and justified by the argument that it was better to ‘exercise restraint in terms of coercive measures [aimed at young people]. Most forms of youth crime are a reflection of momentary temptation and transient adjustment problems and strict sanctions and labelling have no positive impact on them’ (Vestergaard 1990: 85). The new recommendations marked a break with this conception, since they explicitly set the stage for a more repressive course of action. The previous practice was said to lack consequence in two ways. In terms of time, experience showed that it could take more than six months from the offence being committed for the conditional discharge to be announced. Thus, the young offender did not notice any immediate (causal) relationship between the offence and the sanction. Similarly, it was claimed that the use of conditional discharges was quite simply too lax a reaction, with no preventive effect (see also Vestergaard 1990: 91–2). It was thought that both of these problems could be dealt with by the imposition of a type of sanction that assumed the form of a contract, which ‘should be initiated immediately after the investigation of the offence and provide a framework and a perspective for the young person concerned’ (Ministry of Justice 1988: 25). Basically, the idea was that the authorities

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should enter into a contract with the young first- or second-time offender in order to prevent him or her from embarking on a career in crime. In return for satisfying certain conditions – thereby fulfilling their part of the contract – the offence would not be registered on the individual’s criminal record, and therefore they would avoid any stigmatising effects. When first proposed, these were called ‘social contracts’ (Ministry of Justice 1988: 26), which indicates that the sanction was intended as a regulation of the relationship between the individual and society. In other word, the aim was to (re-)establish the actual social bond with the young person. Later, the name was changed to ‘youth contracts’, but the governmental rationality remained the same. As evidenced by the form the youth contracts assumed during a 1991–93 pilot scheme, the contract model was quite specifically conceived as follows:6 If a young person commits a criminal offence that would be sanctioned more stringently than with fines and more mildly than with imprisonment, and the crime is not of a violent nature, then a youth contract may be drawn up for the individual concerned (the initiative for this comes from the police). The contract is entered into between the young offender, his or her parents, the police and the local social services. Social services draft the contract on the basis of interviews with the young person and his or her family, after which it is approved by the police and courts (Høgelund 1993: 37). The young person undertakes to remain crime-free for a period of between three months and one year. The contract also includes a number of what are referred to as social conditions, which relate to the young person’s work, employment, school, education, housing and leisure situations. For example, they should participate in local authority employment projects and in teaching, and also join various clubs and associations to encourage active leisure. It is thought that the social conditions will provide the above-mentioned framework and perspective for the youngster. The police monitor the young person to make sure no further crimes are committed during the contract period, while social services make sure that the conditions of the contract are met (any noncompliance is reported to the police). The contract describes the sanctions that will be imposed if the conditions are violated. The idea of youth contracts contains several paradoxical features. First, it has been pointed out that the social conditions can assume the character of rewards, such as participation in leisure activities (see Vestergaard 1989a). The youth contract transforms such ‘rewards’ into sanctions; thus, what is often viewed positively, and as something to be coveted, is now presented negatively as a sanction. Another paradoxical trait of the contract – partly equivalent to the above, but more fundamental – is that in practice it cannot be refused. In formal terms, the contract and social conditions are presented to the young offender as an offer. However, on examining examples of specific conditions – such as ‘that you receive an offer from the Social Services Committee [. . .] that you, during the summer holidays [. . .] receive offers from the Social Services Committee about participation in [. . .]’ (Rentzmann

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and Reimann 1994: 45, italics in the original) – it is clear that it is only an ‘offer’ on the surface. The only real choice is between a contract or no contract. Refusal to accept is also tantamount to accepting the threatened negative sanctions (criminal record). In some of his analyses of the youth contract scheme, Jørn Vestergaard has argued that the model, along with the idea of community service, reflects an interconnection between repressive and treatment-oriented intervention and even a return (via youth contracts and community service) to the treatment ideal. In particular, he notes the (impact-)pedagogic principle that underpins the governmental idea, which I have presented as a question of the threat of sanctions, but which Vestergaard describes in terms of coercion: ‘The renewed reliance on the pedagogic potential of criminal-law measures reflects a return to a strong, over-exaggerated faith in the potential for achieving positive results via forced treatment’ (1991: 30). Although Vestergaard’s description captures the hybrid nature of the youth contract, his contention that youth contracts mark a return to the classic treatment ideal is not entirely accurate. Like the dedicated treatment programmes of the 1990s, this represents more of a shift in the construction of the criminal subject, who – within the new treatment ideal – is presented as a potentially active individual who must be helped out of his or her temporarily passive state in order to be made active and responsible for him- or herself. In addition, the concept of coercion presents a simplified picture of the youth-contract model’s exercise of power. The model is not based on coercion but on the young person opting to submit to the power of the contract when faced with the prospect of the negative sanction. The power of the contract What is special about the movement established by contract prison wings and youth contracts is that criminals are to be governed by contracts, rather than court orders or similar. The recommended use of contracts may seem harmless, but it has a number of implications that have not been adequately discussed in the debates surrounding crime-oriented contracts. Niels Åkerstrøm Andersen has analysed many of these implications in Borgerens kontraktliggørelse (Contractualisation of the Citizenry, 2003). The real focal point of Andersen’s analysis is not the field of penal/crime policy, but rather the sociopolitical use of contracts. However, this does not mean that Andersen’s general analyses of contracts cannot be extended to cover crime. In fact, it is worth transferring and refining some of his points in relation to the field of crime. Andersen’s central puzzle is the following: how can it be that ‘a constitutive element of civil law, namely the contract, is seen as the solution to current public regulatory problems’ (2003: 14)? In other words, in the field of crime, to what problem is a civil law contract considered to be the solution? Like Andersen, I contend that an answer may be given to this question by referring

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to the general form of government that Rose (1999) describes as advanced liberal, where the emphasis is on shifting political rule from classic welfare state intervention to a more distanced form of government, based on individuals and communities governing themselves as active and responsible entities. In this light, the use of contracts seems to be a strategic means by which to create the individual freedom and responsibility upon which advanced liberalism operates. What matters here is that the contracts are not concluded between already free parties, but are introduced in order to create free individuals (Andersen 2003: 15). In short, it is through the use of contracts that individuals are constructed as subjects who instinctively choose to act freely and responsibly. The contract is an ideal way of achieving this because it is considered to combine duty and freedom (Andersen 2003: 45). Quite simply, the contract links together the key elements of advanced liberalism: individual freedom, responsibility for own actions and the conditioning of freedom through duties. The terms of the contract can also extend duties to include the individual’s relationship to local collectives. Recommending contracts with criminal drug addicts and young offenders can therefore be seen as an attempt to construct a new type of subject who, by virtue of responsible behaviour, is expected to want to refrain from crime. This manoeuvre first requires that both the drug users and the young offenders are considered currently irresponsible individuals. The contract is then introduced as a means to transform them into free, active and responsible citizens. One of the strategic advantages of the contractual relationship is that it does not allocate to the subject the status of a passive recipient, client or patient. As a reaction to this supposedly classic welfare-state problem, advanced liberal rule leads individuals to govern themselves, as free individuals. Paradoxically, in the contract, the individual’s free self-relations develop into an obligation: The obligation that the officialdom seeks to flesh out in social contracts is the clients’ duty to act as if they are free, to have the will to be free and to take responsibility for their freedom. It is about the duty to commit, to give themselves to themselves as free individuals. (Andersen 2003: 119) It is precisely at this point that the contracts are linked with empowerment technologies (Andersen 2003: 73–4). Empowerment is about enabling individuals or groups to perform tasks that they would not be able to take on without external support. ‘Help to self-help’ programmes exemplify this. The crucial point here is that the focus is on individuals’ relationships to themselves, and the contract therefore becomes a means to self-development.7 The linking of contract technologies and empowerment technologies is most pronounced in the contract-prison wings. Inmates are not only expected to

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participate actively in the communal life of the wing. They must, above all, be led to relate to, and deal with, themselves (in five-point meetings, when drawing up treatment plans, etc.). It is the development of this self-relation that is the objective of the treatment. In youth contracts, the empowerment dimension is expressed in the social conditions that are set down. Participation in social and recreational activities is designed to make young people capable of creating an identity for themselves as active individuals involved in local organisations and collectives. The use of contracts therefore serves two purposes. They turn passive criminals into active citizens who, in accordance with the advanced liberal imperative, are freely acting individuals. Combined with empowerment technologies, they furthermore transform the exercise of power so that ‘the form of power becomes power over the client’s [the criminal’s] power relation to him- or herself’ (Andersen 2003: 73). Focus on consequences, selfmanagement and threats of sanctions in case of breach of contract all support these aims. Treatment as empowerment: radical models The new treatment ideal differs decisively from the past in two areas. First, the timescale for treatment is not indefinite. On the contrary, limits are imposed on its duration. Second, proponents of the new treatment techniques are careful not to appear too self-assured. Where Stürup and others’ great confidence in treatment in 1960s and 1970s was replaced by the thesis that ‘nothing works’, the talk of the 1990s was of ‘treatment realism’, the motto of which was that ‘some things work on some people, some of the time’ (Rentzmann 1995: 10). Despite this caution and modesty, advocates of the new treatment ideal nevertheless often voiced great optimism and enthusiasm in relation to its potential. However, a further shift from Stürup’s perspective is also important. As already indicated in connection with the contract-prison wings, the new treatment ideal made use of a transformed relationship between therapist and subject. The early treatment ideal elevated the psychiatrist, psychologist, etc. to the level of expert and authority in terms of the treatment of the criminal, and the inmates also had to take an active part in the actual treatment. The new treatment ideal considered it vital to empower the criminal so that he or she takes an active part in both the diagnosis and treatment (a treatment designed to transform them into an active and responsible individual). As will be shown below, in the discussion of two examples of this trend – the import model and cognitive skills training – the new treatment ideal did not just change the status of the individual undergoing the treatment. The role of the therapist also changed fundamentally. In both cases, there was also a shift in the sense that increasing importance was attached to the criminal’s self-work.

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As well as the contract-prison model, another initiative was promoted in the 1990s for solving the problem of crime through drug treatment – it is referred to as the import model. Under this model, which explicitly challenged the principle of separation of punishment and treatment, a prison imports professional treatment from outside and then lets the treatment take place inside the prison. This is done while the criminal is serving his or her sentence, but on terms that otherwise correspond to those for drug addicts treated outside prison. ‘In popular terms, the objective can be described as follows: import the treatment, export drug-free citizens who – liberated from their dependency – have a much better basis for opting out of crime in the future’ (Storgaard 1999b: Appendix 2, 2). The description that follows describes and analyses the treatment model in the light of the specific form that it assumed in a pilot scheme in a particular prison, Vridsløselille. The assumption is that the description of the specific pilot scheme will help to illustrate the new initiatives that are at play in this revitalised form of the treatment ideal. The pilot scheme started in 1997, when the private institution Kongens Ø (King’s Island) assumed responsibility for the treatment of drug addicts in first one and later two special wings, AII and AIII. The analysis below is of the treatment model used by King’s Island. This model, which has garnered many complimentary reviews along the way,8 is based on the so-called Minnesota Model, with its Twelve Step programme.9 Above all, the treatment in Vridsløselille is organised according to a strict division of daily tasks, which is reminiscent of Foucault’s descriptions of the rules in the Parisian prison La Maison des Jeunes détenus in the period around 1815 (1977: 6–7).10 However, what is exercised in AII and AIII is not disciplinary power, but a governmental power that seeks to manage the prisoners’ self-relations. The day is thus divided into seven points (in addition to e.g. meals and cleaning). First, there are early morning meetings, at which the inmates present their own personal experiences as they relate to a text read aloud from one of the Island’s collections, and/or the inmates promise themselves that they will abstain from drugs.11 Later in the morning, meetings are held at which the attendees are divided into new and experienced inmates. Those in each group talk about themselves and their situation is discussed openly. This, too, represents a sort of confession of problems in an open forum, with a staff representative acting as moderator. Similar meetings are held in the afternoon, although here the inmates are on their own. In between the morning and afternoon sessions, theory-based lectures are held for all of the inmates in the two wings. Following the afternoon sessions, the inmates work with so-called step meetings, based on the Minnesota Model’s Twelve Step programme (more on this below). After dinner, there are again meetings (in the form of either Narcotics Anonymous meetings or so-called Basic Text meetings) at which each participant reads out loud a sentence about life as an addict, which the other participants link to their personal experiences. Finally, these meetings are followed by bedtime meetings at which the day is evaluated and the

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participants, if they wish, talk about anything that they found to be of particular importance in the course of the day.12 All meetings finish with a serenity prayer: ‘God grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference’ (quoted from Storgaard 2003: 35). As with the prison semantics of the nineteenth century, the current treatment is therefore linked to a religious dimension, as evidenced by the Twelve Step programme mentioned above: 1 We admitted that we were powerless over alcohol – that our lives had become unmanageable. 2 Came to believe that a power greater than ourselves could restore us to sanity. 3 Made a decision to turn our will and our lives over to the care of God as we understood Him. 4 Made a searching and fearless moral inventory of ourselves. 5 Admitted to God, to ourselves and to another human being the exact nature of our wrongs. 6 Were entirely ready to have God as we understood Him remove all these defects of character. 7 Humbly asked Him to remove our shortcomings. 8 Made a list of all persons we had harmed, and became willing to make amends to them all. 9 Made direct amends to such people wherever possible, except when to do so would injure them or others. 10 Continued to take personal inventory, and when we were wrong, promptly admitted it. 11 Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His will for us and the power to carry that out. 12 Having had a spiritual awakening as a result of these steps, we tried to carry this message to narcotics, and to practice these principles in all our affairs. (Østergaard and Jønsson 1998: 75, italics in the original) The idea is that the individual drug abuser advances one step at a time whenever he or she is ready. As shown by the Twelve Steps, the treatment is, above all, based on the individual’s self-relations. First, he or she is led to recognise personal shortcomings, after which God acts as an empowerment technology – as a tool to empower the individual. One desired outcome of this empowerment is that the individual is able to evaluate him- or herself morally – and, in that light, to identify personal flaws. The significant religious reference means that this is not a purely neo-liberal programme for the promotion of entrepreneurial individuals. A neo-liberal worldview has no need of a god figure to help deal with character faults. Nevertheless, aspects of the treatment at Vridsløselille are in line with an advanced liberal perspective,

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which makes the Minnesota Model applied there a special hybrid. First, admission to AII and AIII requires the drug abuser to sign a contract. Here, too, the civil law tool par excellence forms the basis for the treatment, although the contract does not involve the same degree of rights and duties as those used in contract-prison wings (see Storgaard 1999b, Appendix 5). Second, the therapists are called advisors (Storgaard 2003: 35), which illustrates that the treatment is staged as a process that does not aim to intervene directly in the addict, but instead to advise/coach (i.e. lead to) them solving their own problems. This is also underlined by the use of Narcotic Anonymous meetings, which act as self-help groups, led by ex-addicts (rather than professional therapists) and drug addicts who want to escape their cycle of abuse. Finally, the treatment programme places great emphasis on consequences, in the form of both stick and carrot (Storgaard 2003: 35). Through this, individuals are constructed as subjects who are accountable for their actions (and cannot shift this responsibility to God). Both the contract-prison system and the import model aim to solve the crime problem, wean addicts off drugs and lead them to act responsibly. By contrast, cognitive skills training does not primarily target abusers, but criminals in general. Cognitive skills training of criminals has been widely employed in Canada since the late 1980s and is described there as a success. In Denmark, too, a great deal of optimism about the programme arose in the 1990s. The critical starting point for the idea of cognitive skills training is that the programme operates on the basis of a causal relationship, in which the immediate cause of crime is not located in the individual’s biological constitution or social background. The basic assumption is, as Governor Bodil Philip of Ringe State Prison (where the programme has been implemented) puts it, that ‘it is characteristic of many criminals that they are undersocialised’ (1993: 19). The criminals’ alleged under-socialised traits are then linked to their cognitive abilities, i.e. ‘what and how an offender thinks, how he sees the world, how well he understands people, what he values, how he reasons and how he seeks to solve his problems’ (Porporino et al. 1991: 231). The fundamental problem, it is argued, is that criminals ‘have a criminal mindset’ (Philip 2001: 105). In other words, the claim is that people can think criminally, that crime is not a matter of actions that can be attributed to a person but that a thought itself can be characterised as criminal. This does not exclude the possibility that under-socialisation is rooted in deeper constitutional or social conditions, but the tactical intervention nevertheless targets the level of thought more directly. The purpose of skills training is to regulate the problem of crime via a special form of empowerment. The individual criminal is empowered to tackle his or her own mindset so that they do not resort to criminal acts. Or, in Philip’s more radical formulation, ‘[t]he purpose of the programme is not to get the inmates to stop committing crimes, but to give them tools so that they will be able to choose a crime-free life’ (2001: 106, italics added).

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More precisely, it is claimed that the criminal individual’s mindset is impulsive, egocentric, oblivious of the consequences of their actions, etc. They simply lack the ‘social tools that are necessary for social adjustment’ (Philip 1993: 19) – and it is this that constitutes their under-socialisation. The key is not that they have an actual illness, but that they lack something. As a result, advocates of the cognitive programme claim that it is not an actual treatment programme – and therefore is not an extension of the 1940s– 60s treatment ideal – but that it constitutes a programme for learning social competences (see e.g. Philip 2001: 109; Porporino et al. 1991: 240). Cognitive skills training is, therefore, considered synonymous with training in social skills/competences. The specific competences on which the programme focuses include the following: • • • • • •

The ability to think, to solve problems and to make decisions. The ability to recognise problems, analyse them, devise and consider alternative (non-criminal) solutions. The ability to learn – logically, objectively and rationally – without over-generalising, distorting the truth or blaming other people. The ability to stop and think twice before acting and to assess the impact of those actions [. . .]. The ability to develop a self-regulating system to prevent antisocial behaviour that is not only dependent on external control. The ability to believe that you can control your own life and to realise that what happens to you depends greatly on your own mindset and the behaviour to which it leads. (Philip 1993: 19)

These focus areas show that the desired socialisation has a very specific purpose. The subject to be created is the epitomisation of the rational individual. This is an individual characterised by logical reasoning, who recognises problems, considers alternatives, reflects (including with others) on the consequences of their actions, etc. This figure, which is described e.g. in theories of rational decision-making, is also supplemented by elements of responsibility and self-control. As a rational individual, their actions cannot be attributed to external (mitigating) circumstances. On the contrary, any rational action is linked to responsibility for the action and its consequences. The responsibility is also evident in the self-control, the exercise of which means that society does not have to regulate the problem of crime directly. The combination of rational characteristics and the interests of society shows that this, too, is a hybrid approach. In its pure form, the rational individual can be regarded as the under-socialised individual par excellence: the individual who is unaffected by social norms and acts on the basis of rational calculations. However, in the hybrid version, the rational individual self-regulates in such a way that external control remains unnecessary.

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In practical terms, the cognitive therapy or learning can take the form of role-play, in which the criminal is exposed to situations similar to those in which he or she would normally act in a criminal manner. The forwardlooking crime-prevention perspective in the learning, therefore, shares crimeprevention environmental planning’s focus on criminogenic situations. However, the intervention points are, of course, different (cognitive preparedness as opposed to physical-material design). Other therapeutic exercises include discussions, visual literacy, etc. (Philip 1993: 19; see also Oestrich 1986). The shift from treatment to learning is interesting for two reasons. First, it breaks decisively with the client–expert paradigm. Where a unilateral diagnosis is traditionally made of the client/patient and the treatment is then provided by the therapist/expert, cognitive therapy involves the client in his or her own diagnosis and treatment. Cognitive skills training is not attributed an effect until the individual’s problems have been recognised by the individual involved. Drawing on Niels Åkerstrøm Andersen (2003: 82), this can be observed as a shift from treatment of the first order to treatment of the second order.13 Just as the recent pedagogic shift has changed the teacher’s role from providing particular lessons to the pupil to supervising the latter’s self-learning, so too do the criminals have the crucial responsibility for their own development and improvement in cognitive programmes.14 The criminal individual is not presented as a passive patient but is, increasingly, subjectivised as an active participant in his or her own development. This shift is, second, related to a new understanding of what qualifications can be demanded of the professional. Even though psychologists who specialise in cognitive forms of treatment recommend extensive knowledge of these methods,15 within the criminological field it is seen as highly beneficial for the expansion of the programme that it only requires ‘that you pass a course that lasts 10 days’ (Philip 2001: 107).16 In purely semantic terms, this movement is exemplified by the therapist in some contexts being characterised as a ‘coach’ (Nielsen 1996: 199): anybody who knows the rules of the game (i.e. for normal social interaction), only requires a minimum of tools before he or she is qualified to teach others self-management. In-depth scientific expertise, which formed the background to Stürup’s programme, for example, is thus replaced by an easily accessible method that everyone is able to learn and apply quickly. Debates about cognitive skills training suggest that this particular approach to crime reduction has been met with great optimism. One reason for this is the contention that all criminals are treatable by cognitive methods. The work is therefore based on ‘an assumption that the cognitive skills that are normally learned in childhood and early youth, but as a group the offenders have not learned, can be learned later in life’ (Andersen 1999: 3). In other words, it is never too late to begin the socialisation of under-socialised criminals. The cognitive model is particularly attractive because it is claimed to be well suited to those criminals who, according to statistical analyses, run

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the greatest risk of re-offending (Porporino et al. 1991: 242). Both factors have undoubtedly contributed to the fact that the idea of cognitive skills training has been translated into several practical initiatives since the late 1990s. In the early 2000s Philip noted with satisfaction that: Today, the programme has spread throughout the prison service. Some 70 instructors have been trained, and about 40 of them are currently teaching. Classes have started in nearly every prison, and the last few will start them soon. A cognitively based anger-management programme has been developed and put into use in some prisons. If the cognitive programme is nurtured, then it is here to stay. (2001: 112) In essence, the cognitive approach to the problem of crime – in which the criminal’s resocialisation is secured by working on his or her thoughts – reflects society’s struggle to prevent recidivism. In that sense, the new treatment ideal is a clear extension of the original one. However, the constant endeavours to intervene and prevent recidivism have also faced critique as a result of problematisations of this very preoccupation with recidivism. Prison governor Hans Jørgen Engbo has argued, for example, that a tension exists between the legal-state protection of individual rights on the one hand and society’s concern for its own safety and effectiveness on the other (a tension that is actualised by the very idea of protecting society). For society, it is useful to reduce recidivism, but efforts to do so can collide with the rights of the individual. In contrast to, say, Bodil Philip, Engbo therefore shelves ‘the useless, the futile, that which does not affect recidivism data, but which in turn protects the individual’s position as a citizen in a state governed by law’ (2001: 40). Community policing At the same time as several of the movements that have been described since the early 1970s were taking place, thinking about policing and how best to organise the police force also ran into crisis. Not only had the sanctions system proved incapable of stemming sharp increases in recorded crime, policing had apparently proved inadequate too. In other words, the police were also confronted with a crisis that had to be addressed more radically than merely by allocating additional resources. In line with international trends, proposals to introduce experiments with community policing emerged in the early 1980s. Below I will discuss the version of community policing that made its breakthrough in Denmark in the 1990s. Following a major local government reform in 1970, in which the number of municipalities was reduced significantly, the police force was also reorganised in 1973. Police districts had been the same as local authority areas since 1919,

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so reform of the former had implications for police structures. However, local government reform was not the only reason for a change in the organisation of the police force. A number of general social trends – more crime, more traffic (and therefore a greater need for traffic control), greater integration with other countries and cross-border crime – also demanded a different police force (Koch 1985: 13–14). As with the local authorities, this resulted in amalgamation into larger units. Ten years later, the idea of community policing was introduced in a Danish context (Balvig and Holmberg 2004: 34). In the intervening years, the public sector had come under pressure (see the problematisation of the welfare state, as discussed in Chapter 4), and the police were faced with demands for new structural changes yet again. In 1983, in the journal Danish Police, Police Chief George Langkilde asked ‘the rhetorical question whether it is the unchanged structure [since 1973] that has contributed to the loss of control over mass crime’ (1983: 623).17 As a solution to the challenges faced by the police force – and indirectly, therefore, to the problem of crime – he recommended community policing. Langkilde himself touched on what, at first sight, might seem to be an earlier equivalent, namely the district police in urban areas and the rural police in the Danish countryside. However, noted Langkilde, the district police had been so overburdened by casework that there was ‘no time for contact with the district and its people, which was the idea behind the scheme’ (1983: 623).18 By contrast, community policing seemed to constitute an alternative that not only focused on close contact with the local population, but which could also be slotted into the tactical reorganisation in policing taking place at the time. One of the main characteristics of this form of policing is, of course, its links to the community. This is quite explicit in the Anglo-American discussion of community policing from which the Danish debates take their cue. As Holmberg notes, community policing involves: ‘policing’ being done by both the police and local people, by them working together: This challenges the idea that crime is a matter for the police alone. Community policing, therefore, means not only that the police have to deal with crime itself in a new way, but they must do so in co-operation with the communities [. . .] Police and communities work together to draw up strategies to deal with crime, so that crime prevention, too, becomes part of a joint project. (1996: 111, italics in the original) This linking of police and communities recurs in the Danish discussions about the nærpoliti, e.g. in the National Police’s Idegrundlag og overordnede mål for dansk politi (Basic Concept and Overall Objectives of the Danish Police, 1998) It states, for example, that ‘[t]he police must forge an active partnership with the community to prevent conflict, unrest and crime from occurring’

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(Rigspolitichefen 1998: 17). Community policing is therefore a model of policing that takes place in, and with, the community. According to Holmberg, community policing requires: a single precondition in order to function properly, namely the existence of a community with which the police can operate. This may sound trivial, but actually it is not. Local people can be no means always be said to constitute a community with identifiable common interests. (1996: 113) Drawing on the discussion of crime-preventive environmental planning in Chapter 5, this argument can be radicalised. It is not merely the case that the community cannot be considered a precondition in some (but not necessarily all) locations – questions must be asked about the very idea of the community as an ontological category. The link between communities and community policing can therefore be considered a construction that serves specific governmental ends: the idea of community policing contributes to the construction of the very community with which it has to work in the fight against crime. This strategy serves to divest the authorities of sole responsibility for dealing with the problem of crime and instead shares it with the local population. As previously indicated, community policing was not envisaged as just a form of decentralisation of normal police work. Rather, the communitypolicing model involved rethinking police work. According to Ole Scharf, chief of police in Elsinore (one of the places where experiments with community policing have been conducted), the work of the community police was to be characterised by taking place within ‘a geographically defined area in which the work is problem-oriented and proactive, in close partnership with the community, with an emphasis on visible and reassuring efforts and the fight against everyday crime’ (Scharf 1998: 42). The key components – which are found in other parts of police work, but which come together in a joint programme in the endorsements of community policing – are, first, that the work is to be problem-oriented, which is a general recommendation in some international police research (Goldstein 1979) and has also found its way to Denmark. The idea is not just to identify problems but also to map and analyse their underlying causes. On this basis, a preventive effort is initiated, intervening directly at the roots of the problem. Consequently, the problem-oriented approach differs ‘radically from ordinary reactive policing, where you respond to an acute problem and solve it, but do not analyse [. . .] the underlying causes and do not follow up on the problem’ (Mathiesen 2000: 123). Second, community policy has to be overwhelmingly preventive. Community policing should use its local knowledge and collaboration with local citizens to prevent criminogenic situations from developing into actual crime. The third component is the work to create a (subjective) sense of

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security in the community, which is to be done by preventive initiatives and through the community police’s local knowledge and physical visibility.19 Specifically, it was envisaged that these elements would be provided by setting up community police stations, or centres for officers, at central locations in the neighbourhood (in the case of the centres, this will be in libraries, town halls, etc.). Also, patrols should be done on foot or by bicycle, in order to facilitate contact with local citizens. The idea of community policing is particularly interesting because, like several of the other conceptions of crime described in this book, it prescribes an exercise of power that uses the construction of the community as a medium. Community policing thus introduces a movement that changes the basis for governing the crime problem so that it is no longer considered purely a matter for the authorities. Rather, the crime problem is now to be solved by the authorities and the community/citizens in partnership. The assumption is that crime is best tackled through the active involvement of communities and citizens, and therefore the relationship between the local level and the police is strengthened through the establishment of community police stations, where the police officer is readily accessible for enquiries and can easily build personal relationships with the local residents, helped by patrolling the locality. The attempt to transfer some of the responsibility for the fight against crime to the community and its citizens is encapsulated accurately by O’Malley and Palmer’s description of the transition from Keynesian to postKeynesian policing (O’Malley and Palmer 1996). The former represents a welfare-state rationale, in which the police are expected not only to possess knowledge of the problems to be solved but also to have the necessary resources to do so. In short, the police are considered an instrument for the regulation of the social field constituted by the individuals and society. By contrast, the post-Keynesian community-police discourse gives an impression of a police force in epistemological crisis. Not least because of the establishment of the community as an ontological category between the individual and society, the police are deprived of the ability to know where the crime is taking place. The police possess the technical knowledge about specific tasks, but it is the community who know where the current problems of crime, and fear of crime, exist. Community policing is, therefore, also a special empowerment technology that aims to empower the community. This empowerment is not only designed to provide knowledge of local problems. As is the case with the idea of crime prevention, the promotion of the community serves to establish a self-regulatory field in which a crime-reducing effect is attributed to the normative collective. In this sense, the notion of community policing prescribes a policing that takes place in the field of tension that exists between the law and the norm (Stenson 1993: 384). The police must base their work on the ordinary law, but also support and operate on the basis of the local norm.

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The sovereign power: repressive tendencies Since Chapter 4, this book has illustrated how, since the early 1970s, Danish problematisations of crime have related to an advanced liberal perspective, one in which the government of crime shifts from being a state responsibility to a matter for individuals, communities and the state together. In this chapter, an element has been added that breaks with the pure form that has otherwise been attributed to the advanced liberal perception of crime (namely, the concatenation of neo-liberal and communitarian aspects). Thus, the recommendation of, for example, youth contracts, is not only a model for the construction of active and responsible young people. It is also an idea that suggests the need for a significant reaction by the state to crimes by young offenders. The semantics of consequences – which, as noted previously, is not restricted to youth contracts – indicates that it is possible to identify the promotion of an increasingly sovereign exercise of power within the current problematisation of crime, i.e. a negatively constituted power that threatens to impose sanctions. According to Pat O’Malley (2001: 18), this can be interpreted as a neo-conservative rationality that goes hand in hand with the construction of active individuals and which, along with the rejection of the individual’s social or biological determination, can legitimise tougher punishments for those who freely choose to indulge in illegal behaviour. It might be argued that there is already an element of conservatism in the advanced liberal rationality of government’s communitarian dimension. However, the neo-conservatism that O’Malley mentions goes beyond emphasising the importance of local collectives. The neo-conservative rationality of government is associated with an idea of re-establishing the state in the fight against crime. It is not up to the community to punish wrongdoing, it is up to the state (see O’Malley 2001: 22). This principle is contrary to the rationale for an allegedly more effective way of exercising power, which has increasingly taken the crime problem out of the hands of the state since the early 1970s. Indeed, the argument for relaunching a negative–repressive form of state power is not necessarily framed in terms of effectiveness. Instead, Garland (1996) sees in this movement a reaction to the embarrassment caused to the state by the semantics of the normality of crime and of the problematisation of welfare-state rule, both of which cast doubt upon the state’s ability to solve the problem of crime. This reaction is demonstrated by the fact that there has, since the 1990s, been an increasing focus on one of the state’s last bastions: the right to legitimate exercise of power via the threat of sanctions.20 The attempt to bring the state back into the fight against crime has been followed closely by criminologists and others with an interest in criminal justice. Since the early 1990s, successive Danish governments have adopted an increasingly repressive course towards criminals.21 This has been expressed in demands for: stricter punishments; family responsibility, which allows parents to be punished for their children’s crimes; secret proceedings in which

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the accused is denied access to the evidence against them; greater powers for the police, e.g. stop and search without reasonable suspicion, etc., etc. (Greve 2004). There is no need to list all of these recommendations. The point is to characterise the complexity of the current efforts to respond to the problem of crime. How is it possible to understand a situation that is epitomised – at one and the same time – by recommendations that favour alternatives to imprisonment (community service, restorative justice, etc.), crime prevention, new approaches to treatment, stiffer penalties, better opportunities for intervening in areas previously considered sacrosanct, etc.? Is there a unity, a coherence in these movements that both distances and centralises the exercise of power? In his analysis of US, UK and Australian conditions in particular, O’Malley (1999) claims that the corresponding movements he identifies in these countries reflect the New Right’s approach to the question of crime. The New Right embraces, on the one hand, the support for market forces inherent in the neo-liberal rationality of government, which is reflected in initiatives that seek to construct criminals as active and responsible individuals. On the other hand, the New Right also embraces a neo-conservative dimension that emphasises the key role played by the state in maintaining moral order, including through punishment (O’Malley 1999: 189). Whether or not O’Malley’s characterisation of the emergence of the growth of the New Right is correct, there is no doubt that a complex and contradictory mixture of rationalities of government is now at play in the area of crime. Although advanced liberal and neo-conservative rationalities are promoted in one and the same initiative in several cases (e.g. youth contracts), their contradictory coexistence generally seems to rest on a differentiation of the target groups for the measures. According to David Garland’s distinction, the advanced liberal initiative can thus be linked to a ‘criminology of the self’, while the neo-conservative regulations are based on a ‘criminology of the other’ (2001: 137). The former subjectifies criminals as rational individuals – or at least as individuals who, by means of empowerment and contractualisation, can be made to act rationally and responsibly. By contrast, the criminology of ‘the other’ presents a form of subjectification in which criminal individuals are demonised, considered incorrigible scum, etc. It categorises paedophiles, rapists, immigrants and terrorists (among others) as groups against whom repressive measures are demanded to protect society – if necessary, at the expense of the rights of individuals. The same differentiation can also be expressed in terms of inclusion/exclusion. Advanced liberal initiatives focus on individuals for whom social inclusion is seen as a possibility. The neo-conservative rationality is brought into play against individuals whose social exclusion is considered deeply rooted (Rose 1999: 240). The distinction articulated in the early conceptions of crime between improvable, incorrigible and occasional criminals seems, therefore, to be reiterated intact in modern programmes.

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The crucial implication of pointing out how complex the area of crime has become at the end of the twentieth and in the early twenty-first centuries is that diagnosing contemporary problematisations of crime requires a nuanced understanding of power. Only with a nuanced understanding is it possible to embrace the simultaneous promotion of control, sovereignty, discipline and of governmental and biopolitical forms of power. Such an understanding is particularly imperative at a time when apparently laudable crime-prevention activities are linked to an ever-greater (revived) interest in the individual’s potential dangerousness, and when the interests of legal certainty and security have been used to legitimise branding everybody with a biopolitical tattoo (see e.g. Amoore and de Goede 2008; Aradau and van Munster 2011; Harcourt 2006; Simon 2007).

Conclusion: the twentieth century and beyond

On the perspective This book has analysed the twentieth-century history of problematisations of crime in Denmark, with a view to the forms of knowledge and technologies of power associated with these problematisations. The aim has not been to identify specific causes of the developments – for example, that society has undergone significant transformations that have required new approaches to the question of crime. Nor has it been to claim that specific individuals were crucial to these shifts (the individual authors examined in the book have rather epitomised larger discursive repertoires). In other words, the focus has not been on who or what has been responsible for the problematisations of crime or why. Rather, the key issue has been how the history of problematisations of crime has evolved in Denmark. I argued in the Introduction that a historical problematisation analysis exhibits certain features not often explored in Foucault-inspired work within criminology. I will not revisit all of these arguments here, but simply make three brief points. First, the long historical perspective examined in this book provides a good background for understanding current developments. As argued earlier, problematisations never arise out of the blue. But nor do recommended responses to the problematisations of crime. The historical perspective thus allows for an understanding of how current developments may also be indebted to previous problematisations and/or responses. In other words, the historical analysis can provide insights into how contemporary ways of problematising and governing crime may prove to be uneasy convolutions of previous problematisations and responses. Second, the particular view of power on which the book is based has a number of analytical advantages. Based on Foucault’s understanding of power, it has shown that wielding power can be a productive and creative phenomenon and power should not necessarily be understood as negating freedom. On the contrary, throughout the book I have demonstrated the counterintuitive point that power may also be exercised through freedom. Another important benefit of the analytics of power applied in this book is that it has been open

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to the wide range of technologies with which it has been suggested that power should be exercised. Finally, although the analysis has not promoted an explicitly critical agenda, this does not rule out deriving critical conclusions from the study. For example, the analysis of the tendential biopolitical aspects of contemporary crime prevention clearly points to the need for critique. However, such critique should not be confused with a critique of power as such. Wielding power is not necessarily bad per se. However, because power acts as a mechanism by which actions are regulated, there may be good reason to draw attention to its usage and question its legitimacy. I shall return to these points in the following, where I will first briefly recapitulate the main developments examined in the book and then discuss some implications that can be drawn from the twentieth-century experiences. On the developments It is appropriate to take the conceptual framework that prevailed in the midnineteenth century as the starting point for the summary of the history of problematisations of crime in Denmark. At the time, since all actions were basically regarded as the result of choices made on the basis of free will, crime also appeared to be a matter of choice. In this light, coping with crime was a matter of exerting influence on the calculation that the individuals concerned were said to use to determine their actions. The recommendations for governing individuals’ actions took various forms. On the one hand, it was believed that illegal deeds could be prevented through the threat of punishment. This reflected a form of sovereign, negative exercise of power. On the other hand, there was the idea of reforming the offender by enforcing sentences, more precisely via solitary confinement, morally edifying conversations with prison chaplains, etc. So whereas the metaphysics of will, which permeated this conception of crime in general, paved the way for the regulation of actions through a sovereign form of power, the specific recommendations for improvement included disciplinary measures and governmental attempts to encourage immoral individuals to scrutinise and work on their selves. The problematisation of crime changed significantly at the end of the nineteenth century. For Lombroso, Ferri and Liszt, the crucial problem was defending the social/society in the light of the threat from the period’s new subject construction: the criminal individual. Although it was stressed, to a greater or lesser extent, that crime is partly rooted in social factors, this problematisation particularly revolved around the criminal individual himor herself. The criminal person was seen as a pathological individual who, by virtue of his or her nature – psyche, anatomy, etc. – was claimed to be predisposed to criminal behaviour. This problematisation of crime gave rise to a series of new responses. To begin with, social conditions had to be

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improved. In other words, an intervention was needed in the social mechanisms that allegedly generate crime and therefore threaten society from within. Further recommendations stemmed from differentiating between different types of criminal subjects. Demands were made that the incorrigible be interned/rendered harmless indefinitely, whereas for those deemed capable of reform, measures were recommended that (as previously) were of a morally uplifting nature. Occasional criminals, finally, should be regulated by society threatening punishment. This new problematisation of crime prescribed a far more differentiated and complex exercise of power than its predecessor. Punishment and the threat of punishment need not be points of reference for crime-fighting efforts. On the contrary, it was claimed that the new subject constructions require an individualised approach, not only when it comes to reform, but in the whole organisation of the way in which society is protected. Different forms of power – sovereignty, discipline, government – were therefore mixed together in an increasingly dominant biopolitical programme, in which protecting the social and the growth of social forces were made dependent on the regulation of antisocial elements. Several of these elements made breakthroughs in Denmark in the early twentieth century. I have identified two particular lines, both of which followed the paths marked out in the international discussions. One line argued that sanctions should not be determined by the criminal act, but by the criminal’s individuality and dangerousness. Only through this, was it believed that society would achieve the best protection. For example, it was claimed that there was a need for indefinite internment, combined with treatment. In the second line, a crucial role was played by the pathologising construction of criminals as degenerate individuals. Degeneration was turned into a problem because, through genetics, the ultimate threat was that society would be destroyed from within. Various measures were prescribed as responses to this problem, some more radical than others. Specific recommendations included marriage bans, sterilisation and incarceration. Common to all of them is that they were trying to deal with the problem of crime by targeting the potential for procreation. This took the form of a comprehensive biopolitical exercise of power, which linked the protection of the population and of society with the protection of the race. This amounted to a (to use Foucault’s words) state-racist project in which biopolitics latched on to a revival of sovereign power and, as a result, a sword hung over individuals who exhibited the characteristics of degeneration and crime, as it were. With the Criminal Code of 1930, the individualising, treatment-oriented understanding of crime gained a political-legal foothold, and the discussion about the specific nature of the treatment became more detailed. Stürup’s approach to crime was based on a problematisation of a special category of criminals – psychopaths or people of insufficient character – for whom he prescribed a clinical criminology programme of indefinite psychiatric

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treatment. The exercise of power took a turn here. The state and its institutions were granted overall responsibility for the treatment of criminals, and psychiatric therapy was used to encourage individual offenders to conduct themselves in a lawful manner. To achieve this goal, the treatment needed not only to be indefinite, it was equally important that it took place in an institution in which the criminal (to use a notion from systems theory) was hyper-included in the medical system. This was reflected in the fact that every aspect of a person’s past, present and future was to be observed from a medical perspective. Although the treatment ideal went unchallenged in Denmark for a long time, an incipient (external as well as immanent) critique gradually became so dominant that the belief in treatment collapsed. From the early 1970s, it was quite simply no longer legitimate to suggest that the problem of crime could be solved through indefinite treatment. This was linked to the fact that crime was no longer conceived of as pathological, but as normality. It was not just the idea of indefinite psychiatric treatment of criminals that appeared problematic with the transition to the 1970s. Imprisonment was also problematised. Imprisonment was claimed, both financially and in terms of exercising power, to be an ineffective approach to cutting crime and resocialising individuals. As a response to these alleged problems, alternatives to imprisonment were proposed, including community service and restorative justice. Like many other initiatives launched from 1970 onwards, these tried to regulate the problem of crime without resorting to the use of incarceration in institutions. The promotion of these alternatives was further linked to a growing critique of the entire welfare-state rationality of government, in which the state was seen as responsible for the regulation of the social (allegedly resulting in clientalisation, economic problems, the dissolution of collectives, etc.). In the face of this, self-management, decentralisation, strengthening communities, etc., were recommended in alternatives to imprisonment, entrusting individuals and communities with some of the responsibility for solving the problem of crime. This involved new forms of subjectification and new technologies of power. Individuals had to be activated and made responsible. And since it was claimed that individuals constitute their identity through a sense of belonging to the community, that community had to be generated in the first place. The aim was therefore a distancing of the exercise of power, with individuals and communities encouraged to lead themselves. Another response to the problematisation of the treatment ideal and imprisonment’s (in)ability to cut crime, was prevention. The idea of crime prevention that arose in the 1970s required a radical reorganisation of efforts to combat the phenomenon of crime. Rather than being reactive, i.e. punishing criminals, the idea was to stop crime occurring. Instead of identifying socially or individually based causes of crime, efforts were to be directed towards situations that could give rise to crime and/or the fear of crime. Here

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too, the exercise of power aimed to make individuals and communities accountable, to activate them in the fight against crime, a problem the state was no longer thought capable of dealing with on its own, although it was attributed a supporting role. Once again, what appeared here was an exercise of power that encouraged individuals to govern themselves in a responsible manner. One of the central aims of these crime-prevention strategies was to make individuals prudent. Unlike previous attempts to regulate individuals’ actions, the design of physical-material space was ascribed a significant role in this idea of crime prevention. The design of physical space was, in turn, expected to contribute to the strengthening of the social space – the community – in which individuals were to be included, and which was deemed fundamental to crime-prevention work. I have argued that, importantly, the idea of crime prevention is also characterised by breaking down the boundaries of what can be done in the name of fighting crime. All aspects of the lives of individuals – their neighbourhood, health, schooling, lifestyle, leisure, movements, etc. – are involved in what has been called in this book a tendential totalitarian biopolitical endeavour, in which nothing is too minor or insignificant to be governed, provided it can be characterised, even indirectly, as a danger signs, and therefore arouse the slightest suspicion that criminal or other antisocial behaviour could occur. Some of the post-1990s developments covered in this book relate to accountability. For example, it is posited as a problem that sanctions for young offenders do not force them to confront the consequences of their deeds to a sufficient extent, which allegedly means that they do not develop into responsible individuals. It is also claimed that the police are unable to fight crime on their own, and that local people and communities must assume responsibility. The initiatives launched as responses to this include, first, the use of contracts through which attempts are made to empower criminals and turn them into responsible, semi-private contractors. Then there is the new optimism about treatment, in which criminals, via cognitive-skills programmes, etc., are empowered to take responsibility for their own diagnosis and treatment. Finally, community policing is presented as a solution to the problems faced by the police force. This response too, is about constructing and empowering communities. The basic form of subjectification in these programmes is the free, active and responsible individual, who – either on his or her own or in partnership with the authorities – helps to fight crime. I have argued that the focus on the single, free and responsible individual testifies to a neo-liberal rationality of government. At the same time, the weighting of the community means that the form of government involved in some of these late-twentieth-century recommendations also embodies communitarian traits. This simultaneously neo-liberal and communitarian rationality of government has (à la Nikolas Rose) been described as advanced liberal. However, alongside advanced liberal rule, another parallel

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problematisation of crime highlights the need for strong state sanctions, thus heralding the return of the state to the fight against crime. Overall, this is reflected in a growing complexity in the area of crime, in which different – and somewhat contradictory – forms of power are deployed side by side. I would like to reflect on this development in the problematisations of crime by drawing attention to two of the points mentioned in the Introduction. First, when outlining what a problematisation analysis entails, I noted that a history of problematisations is closely linked to questions of power and truth, meaning, among other things, that a problematisation analysis is about addressing connections between government and ‘forms of knowledge (savoirs), studied in terms of their specific modes of veridiction’ (Foucault 2011: 9). Focusing particularly on the latter aspect, i.e. on knowledge and veridiction, it may be argued that the present study has outlined two central modes of veridiction during the twentieth century as well as a host of forms of knowledge associated with these two. Thus, the Lombrosian turn, i.e. the invention of the criminal subject as the pivotal point in the problematisation of crime, marked the first central mode of veridiction, and one that, as analysed, made a fundamental break with the key nineteenth-century mode of veridiction centred on free will. As indicated, the Lombrosian turn gave rise to a number of specific forms of knowledge in the field of crime (eugenics, psychiatric treatment, etc.), which ultimately rested on the notion that the criminal individual could be singled out in his (or to lesser extent her) particularity. The central shift in mode of veridiction came with the notion of the normality of crime in the early 1970s, which in effect suspended the interest in particular individuals, allegedly predisposed to criminal activity, and based the responses to crime on an interest in criminogenic situations. Interestingly, and this is the second point from the Introduction that I wish to relate to here, this shift away from homo criminalis may bear some resemblance with what Foucault writes about Gary Becker’s neo-liberal analysis of crime and punishment. In Becker too, there is a clear demarcation from the Lombrosian register. For him: the criminal is not distinguished in any way by or interrogated on the basis of moral or anthropological traits. [. . .] The criminal, any person, is treated only as anyone whomsoever who invests in an action, expects a profit from it, and who accepts the risk of a loss. (Foucault 2008: 253) Although this line of thinking implies a notion of the normality of crime that strikes some chords with what I have analysed in this book in relation to especially the kind of crime prevention that emerged in the 1970s (i.e. more or less simultaneously with Becker’s paper), there is one central difference between these two modes of verdiction that renders Becker’s neo-liberal break away from Lombroso more radical. Thus, whereas Becker’s objective was to

Conclusion 149

analyse not how crime may be eradicated, bur rather how its optimal level may be arrived at, the idea of crime prevention is characterised by an ultimate belief in the need for, and possibility of, actually eliminating crime. In that sense, the crime prevention of today remains Lombrosian, and the modes of veridictions constituted by the Lombrosian project and by the normality of crime therefore share at least this ambition of a society without crime. Indeed, I will claim, the history of the problematisations of crime presented in this book makes clear that much of the twentieth century has been characterised by a fundamentally Lombrosian rationality. Certainly, it is no longer about comparing forehead height and ear shape with rates of crime and recidivism. Lombroso’s phrenology is not in vogue any more (although genetics may well herald a new biologisation of the problem of crime). However, the whole positivist project of pinpointing the exact causes of crime in order to identify instruments for solving the problem, the whole eagerness to evaluate initiatives in order to optimise spending and government, can be seen as an extension of the social hygiene programme that Lombroso founded in the field of crime. Interpreted on the basis of this continuity of the basic endeavour, connections can be established, for example, between contemporary crime prevention and the early twentieth-century state-racist conception of crime, both of which are about making life and the living the reference point for a tendentially totalitarian approach to combating crime. Today, interventions are not directed at procreation, but at all other aspects of life. Another – albeit non-Lombrosian – connecting line runs between the current return of sovereign power (including its implicit or explicit links to neoliberal programmes) and the mid-nineteenth-century idea that individuals can be regulated via the threats of sanctions. The Lombrosian rationality and the sovereign form of power have merged in the early-twenty-first-century problematisation of terror. Indeed, a large number of post-9/11 developments in many Western countries, including Denmark, have reinforced the Lombrosian project about singling out individuals predisposed to criminal activity. While this book has focused on the twentieth century and thus deliberately refrained from entering into a systematic discussion of this problematisation of terror, the point I wish to make here is that, although these more recent developments may exhibit novelties particular to them, it is difficult to fully understand their rationalities without acknowledging their Lombrosian background in particular. One final note about the history outlined in this book. In his description of the development of Danish crime policy, Flemming Balvig states that experts have disappeared from crime policy, which, since the discussions about the welfare state’s crisis, has become an increasingly politicised field (2003; see also Waaben 1989: 6–7). In other words, whereas criminological expertise used to be a voice listened to in problematisations of and responses to crime, such expertise is now ignored, according to Balvig. I have adopted a different perspective. Although criminological expertise may no longer play a

150 Foucault, crime and power

prominent role in the formulation of crime-policy initiatives, this does not mean that problematisations of crime are not based on – and to some extent legitimise themselves through – expertise. Crucially, however, the nature of the expertise has changed. Since the 1970s, there are no longer any supposedly natural, given links between problematisations of crime, on the one hand, and criminology, criminal law or psychiatric expertise, on the other. On the contrary, changes in the problematisation of crime have led to the inclusion of a broad range of new forms of expertise, including urban planning, architectural theory, pedagogy, cognition theory and semi-scientific ‘help-to-self-help’ philosophies. And as indicated above, the current problematisation of terror may initiate a new revival of biologically informed criminology. On the implications Let me round off by further addressing the point about how a history of the problematisations of crime may contribute to the current debates about the phenomenon – namely, the way in which we are now governed in relation to the crime problem and how we would like this to be done in the future. In both cases, it is a good idea to look to the past. In retrospect, the historical analysis shows, above all else, that how crime is problematised has huge implications for the forms of subjectification that are constructed in the conceptions of and responses to crime. For example, proclaiming criminals to be degenerate individuals easily paves the way for radical measures. However, even the initiatives prescribed on the basis of the idea of the normality of crime and the criminal can, as shown in this study, have far-reaching implications. Promoting ideas about the constitution and proper behaviour of individuals is, therefore, never without its implications. Programmes that are presented as exceedingly caring and humane are no exception. Interestingly enough, virtually all problematisations of crime in the twentieth century invoke humanism, and assert that the results of the particular measures in question reflect humanity personified. This is seen in the eugenics programmes, in Stürup’s treatment ideal and in the critique of the latter. The strategic reference to humanity is problematic for several reasons. First, it renders the programmes themselves immune to criticism (for who wants to criticise humane actions?). Second, they prescribe an exercise of power that, in principle, is focused on the individual in his or her entirety. Third, they easily imply a moral distinction between good and bad people. With reference to Luhmann’s (1994: 56) observation that ‘[a]ll experience speaks for theories that save us from humanisms’, the history of the problematisations of crime seems to warn against ‘human’ programmes. A critical note is suggested here. This book has in effect presented a critical history, attempting, in Foucault’s words ‘to question truth on its effects of power and question power on its discourses of truth’ (1997b: 32). It is, however, a special kind of criticism. First, problematisations of crime have not

Conclusion 151

been assessed morally, but analytically, on the basis of their power effects. Second, the intention has not been to translate the analysis into a ‘better’ or ‘more correct’ understanding of crime or criminal policy. In this regard, Foucault’s point is correct: Under no circumstances should one pay attention to those who tell one: ‘Don’t criticize, since you’re not capable of carrying out a reform.’ That’s ministerial cabinet talk. Critique doesn’t have to be the premise of a deduction that concludes, ‘this, then is what needs to be done.’ It should be an instrument for those who fight, those who resist and refuse what is. (1991: 84) However, this does not mean that the book’s analyses have neither practical nor theoretical implications. Even though the critical analysis has not directly targeted the political level but, rather, has taken the form of a critique of the kinds of truth associated with the various problematisations, the analyses undoubtedly qualify certain discussions about crime policy. For example, often-articulated statements like ‘the interests of the offender are typically put before those of the victim’ can be challenged on the grounds that since the 1970s, the problem of crime has been linked to an extremely intensive interest in potential victims. Indeed, if attention is paid to how ‘consideration’ of the criminal has been managed throughout history – what efforts, based on the criminal individual’s person, have been made in order to deal with problem of crime – it is natural to ask whether we also wish to enrol the victims in the dynamics that play out in the crime-fighting apparatus. On the whole, a look at the history of the problematisations of crime sounds a note of caution with regard to current efforts to govern individuals in the name of fighting crime. Not only does the mapping of the periodic rise and fall of ‘truths’ lead to scepticism about what is taken for granted during any given period. The more general question is whether the carefulness required of us all should not be deployed reflexively in problematisations of crime and recommendations for dealing with the problem. In other words, is there not a need for the problematisation of crime to be linked to the question of its power effects to a much greater extent than has been the case hitherto? At any rate, Luhmann’s summary of the basic condition of social life’s contingency – that nothing is necessary and everything could be different – also applies to crime. Acknowledging this presents a true challenge to the way in which we problematise crime, and the ways in which we seek to respond to the problem.

Notes

Introduction: Foucauldian cues

1 The following is intended merely as a brief outline of the elements of Foucault’s analytics of power referred to in this book. More comprehensive presentations are found in, e.g. Lemke (1997) and Raffnsøe, Gudmand-Høyer and Thaning (2008). 2 It is in this context that Foucault puts forward his renowned critique: ‘In political thought and analysis, we still have not cut off the head of the king’ (1990: 88–9). In other words, political theory has not updated understandings of power, and clings to a concept formation that corresponds to pre-modern social structures. 3 Self-techniques are defined as ‘techniques that permit individuals to effect, by their own means, a certain number of operations on their own bodies, their own souls, their own thoughts, their own conduct, and this in a manner so as to transform themselves, modify themselves, and to attain a certain state of perfection, happiness, purity, supernatural power’ (Foucault 1997a: 177). 4 It should be emphasised that the periods of time referred to are not exact, nor do they mark clear breaks in the sense that particular problematisations of crime fell out of favour at the dawn of a new era. The periods referred to act merely as an indication of when the various problematisations of crime were at their zenith. 1 The birth of criminology

1 Almost all late-nineteenth and early- to mid-twentieth-centuries discussions of crime are gendered, with crime and criminals being addressed almost exclusively in male categories (Lombroso is a partial exception to this, as I shall come back to). I have decided to retain the gendered language in my accounts of these time periods, because that is the only consistent way to deal with and take seriously the texts under study. 2 The wording was as follows: ‘A less harsh punishment than the statutory one will be applied to fools or other persons who, though they do not completely lack their faculties, nevertheless because of special circumstances that influence free will, cannot at the time of the deed be considered to have been in possession of the sanity found among adults with healthy souls’ (Criminal Code of 1866: Section 39). This could, for example, be due to ‘intoxication, being heavy with

Notes 153

3 4

5 6

7 8

9 10

11

12

sleep, suffering violent physical pain or madness leading to a crime of passion’ (Algreen-Ussing et al. 1864: 48). The Criminal Code of 1866, Section 14, made it clear that this targeted ‘older or more hardened criminals, particularly those who have previously been punished by such means or with repeated or long periods of work in a house of correction’. The strict control exercised in prison was not implemented without resistance. In his historical description of conditions in Vridsløselille, Smith mentions a series of actions by inmates that, in Foucault’s terms, could be described as resistance. For example, at one point, concern was expressed that the prisoners would ‘empty themselves’, in one way or another, during religious services, for which – in accordance with the isolation principle – they were kept in small cubicles with no contact with each other (2003: 263). For a more detailed treatment of Lombroso’s work, including the complex genealogy of the positivist school, see Hauge (1996: 177 ff.), Gibson (2002) and Gould (1996). Or, as Lombroso’s prominent supporter Hans Kurella put it, ‘[a]s a result of [Lombroso’s] work, we are enabled to define the type of the criminal as that form of degeneration which is characterized morphologically and biologically by atavistic characters, and psychologically by the deficiency of altruistic feelings’ (1911: 105). The borderline case was the insane, because they lack the power of the will. It might be argued that, instead of talking about a Lombrosian project, it would be more accurate to speak of a basically Darwinian project transposed to the subject of crime. Although it is possible to argue such a position, to do so runs the risk of giving precedence to one of Lombroso’s sources of inspiration over the others. What is special about Lombroso is, however, his highly eclectic approach to the theoretical currents of his day, which makes it extremely difficult to reduce his programme to an exclusively crime-specific application of just one current or theory. See also Ferri’s broad definition of criminal anthropology: ‘Criminal anthropology studies the criminal man in his organic and physical constitution, and in his life as it relates to his physical and social environment’ (1900: 4). Here, again, he was in line with Lombroso, for whom the safety of society was the highest priority (1894a: xxvi). The idea of defending society and the social does not originate from Ferri, but can be traced back at least to the 1830s (Pasquino 1991: 241). As Ferri himself noted, this proposal was not in itself new, but had already been introduced in Switzerland in 1867 (1900: 211). However, it was only with the positivist school that the measure became part of a systematic scholarly programme. According to Ferri, the deportation of prisoners to islands or remote continents was characterised by ‘an unquestionable element of reason’, as the prisoner’s limited chances of returning made this ‘the best method of ridding society of its most injurious factors’ (1900: 248). Ferri thought that the death penalty, which, in principle within the positivist school, would be the most definitive way to solve the problem of born criminals, was impossible in practice. He believed that the public would not tolerate ‘the slaughter of several hundred murderers every year’ (1900: 243). This is what Foucault would call a power-economic reasoning,

154 Notes

in which the sovereign form of power was rejected because of the claim that it would meet resistance from the public. In Ferri’s perspective, rather than fighting this resistance, it would be more expedient and efficient to segregate or deport criminals. 13 Using the terminology of the political theorist Chantal Mouffe, this understanding did not pave the way for an agonistic struggle between two opponents (the state and the criminal) but to an antagonistic struggle between enemies. The state should try, as far as possible, to eliminate dangerous, criminal elements (see e.g. Mouffe 2005; the semantics of enmity is very pronounced in Liszt 1905c). 14 Yet another example of how Liszt tended more towards the sociological is his characterisation of crime as a ‘social-pathological occurrence’ (1905a). In line with Durkheim – but without his functionalist perspective – he did not (unlike the criminal anthropologists) consider crime as something pathological per se, but thought that crime could grow to assume a pathological character. And more generally: ‘We would then have to describe a social occurrence as social-pathological if it endangers the continued existence of the community, be it directly or be it indirectly through inhibition of further development’ (Liszt 1905d: 440–1). 2 For the protection of society

1 Previous studies of how these international penal/criminological debates were intertwined with discussions specific to British and German developments include Garland (1985) and Wetzell (2000). 2 Even if Geill is considered the first Danish criminologist, it is a matter of debate whether the work cited was the first Danish criminological study. In 1902, Alexander Kraft had already published Kriminalogiske Studier over mandlige Straffanger i Vridsløselille Staffeanstalt (Criminology Studies of Male Prisoners in Vridsløselille Prison, 1902), but this was more essayistic than Geill’s book. 3 The study, conducted by Bergh (1891), drew explicitly on Lombroso, who had also cited the incidence of tattoos on criminals (and who, incidentally, also quotes Bergh, see Lombroso 1894b: 175 ff.). According to Bergh, tattoos were a pagan phenomenon and therefore not generally widespread in Denmark (‘Culture and tattoos cannot be reconciled,’ he argued, see 1891: 5). On the contrary, tattoos were only seen on ‘the dregs of humanity, from whence the majority of criminals stem’ and on ‘prostitutes, almost always signalling mental degeneration’ (1891: 8, 16). Another of Lombroso’s theses concerned criminals’ handwriting. In Denmark, this was taken up by Marer (1898). However, Marer was less interested in using graphology to categorise types of criminal and more interested in its practical application as a tool with which to verify the identity of specific individuals. A similar path was pursued by Hansen (1889). 4 Geill had also studied degeneration in an earlier treatise on questions related purely to mental illness (1899a). 5 He studied a range of factors in prisoners, including bodies (ear height, head circumference, forehead size, etc.), descent (whether the father/mother was mentally ill, a neurotic, etc.), psychological state (imbecility, epilepsy, hysteria, etc.), somatic state (signs of degeneration, physiognomic peculiarities (including ‘sneaky criminal face’, ‘large, curved nose’, ‘hoarse voice’)), chronic alcoholism and social peculiarities (including tattoos).

Notes 155

6 Lov om Behandling af forbryderske og forsømte Børn og unge Persone (Act on treatment of criminal and neglected children and young people) (Act no. 132 of 31 March 1905) was based on the Report from the Commission concerning the State Supervision of Childrearing (Betænkning fra Kommissionen angaaende Statstilsyn med Børneopdragelsen, 1895). This report, which was partially inspired by Liszt (Report 1895: 10), documented a rapid increase in the number of crimes committed by children. It was therefore considered necessary that the State encouraged ‘a further development of measures for the fulfilment of the State’s obligation to supervise the moral education of the generations to come. [. . .] The importance of taking action in time, before the corrupt shoots have sunk deeper roots, cannot be too strongly emphasised’ (Report 1895: 23, 35–6; italics in the original). The Commission was of the firm belief that this could not be achieved through the provisions of the existing Criminal Code. Instead, it was to be facilitated by the compulsory removal from their families of children who might otherwise suffer moral damage. Particularly difficult children were to be placed in reformatories, while children’s homes, foster care (or homes) or forced schooling could be used in less serious cases. Decisions on what measures to deploy in the case of a particular child were to be made by special child-welfare councils, which consisted of, inter alia, a teacher and a priest. Decisions were to be based on an evaluation of the child’s character. According to Geill, the new law reduced the arbitrariness that had previously beset the use of reformatories and foster care (1906: 269). Broader criminological discussions about children and young people are analysed by Nielsen (1986). See also Dahl (1978) on developments in Norway. 7 Suspended sentences were also being debated at the time, see Proposal for a temporary act introducing certain changes to the Criminal Code (1904: Sections 17–20) – introduced in 1905 (see Torp 1905: 858 ff.). 8 See Garde (1999) for a study of the Association’s history. 9 See, for example, the following comment, in which Torp also praises Lombroso for his ground-breaking work: ‘The methodical, exact, natural-science study of the causes of crime, which considers both the criminal’s peculiarities and environmental factors (which, incidentally, exert an influence on the genesis of the crime) may well be said to still only [. . .] be in its infancy, but the movement, which is primarily Lombroso’s achievement, has borne fruit in that it is becoming increasingly accepted that only a multifaceted examination of these subjects will ensure a sufficiently solid foundation for a scientifically based, practical and appropriate treatment of the basic question facing criminal law’ (1905: 31; see also 1900). 10 According to Torp, time was also an important aspect: while the question of soundness of mind is about the time of the offence, the question of punishment concerns the person’s state of mind at the time the sentence is enforced (1905: 336). 11 It was also possible to drop charges against juvenile offenders if, instead, they were put under a care order by a child-welfare committee (Section 30). In other words, if (another) form of normalising power was deployed. 12 The upper limit was established in Section 65.2: ‘When a person has been in custody for 20 years, he shall be released unless the Prison Board considers release a matter of concern.’ 13 Some years before the new Criminal Code was adopted, a particular event had led to the formulation of the 1925 Act on safety measures against certain persons who

156 Notes

14

15

16

17

threaten the rule of law, which had certain features in common with the later criminal code (Act No. 133 of 11 April 1925). The background was the so-called Berning case, in which, towards the end of his sixth prison sentence, a former schoolteacher was assessed as a threat to public safety, and was consequently detained beyond the period specified by the judgment. (According to the MedicoLegal Council, Berning was ‘a mentally degenerate individual, suffering from a pronounced sexual hyperesthesia, which manifests itself in frequent crimes that pose a threat to society’, quoted from Greve 2002: 196.) Berning sued the Ministry of Justice – and won – but Minister of Justice K. K. Steincke made sure that the Act was passed. The Act allowed for indefinite internment (Section 1). Although the Act was temporary, and supposed to expire by 1927, it was extended until the new Criminal Code came into force. In parts, the wording of the Internment Act was almost identical to sections of the Criminal Code, but the influence of the former on the latter must not be overstated. As Waaben (1968: 60) points out, Torp, in his 1906 treatise on the so-called diminished soundness of mind, had already laid the groundwork for the 1930 Criminal Code’s breach with the 1866 semantics. However, it must be acknowledged that the Internment Act reflected the first political-legal acceptance of psychopathy as a basic element in crime, as indicated by the following statement: ‘Psychopathy can be said not to have attained legal recognition as being of principal significance in criminology until the Internment Act of 11 April 1925’ (Report 1931: 8). See also Stürup (1959: 11): ‘It is clear that not only was there dissatisfaction [with the previous rules]. There was also positive thinking behind the reform, which sought to find some form of special treatment designed to rid society of the dangers posed by these individuals should they remain at liberty.’ According to Wimmer, ‘[t]he born criminal’s characteristics coincide almost completely with the common causes of mental degeneration, and the anatomical and psychological criminal characteristics outlined by Lombroso and his followers are found in the same type and grouping in the degeneration clinic’ (1909: 131, italics in the original). The idea of a born criminal thus became the subject of a scientific struggle for domination, which for Wimmer was about (re)defining the subject category so that it was transferred from general anthropology to the narrower degeneration theory (see also Geill 1906: 11). It should be noted that Wimmer separated degenerate habitual criminals/ professional criminals from those he termed ‘the healthy criminal of sound mind’ (1909: 131). At first glance, this seems to be a contradictory category within this particular discursive repertoire, but it applies to those individuals who are aware that they are violating the moral order at the moment the deed is committed and who are, therefore, unlike the morally degenerate, aware of the existence of the normal order. Elsewhere he spoke of the ‘the normal person’s crime, which is apparently solely or mainly due to “plight”, occasion, temptation, need, an unfortunate social atmosphere, etc., or where an exceptionally strong but otherwise quite well-founded passion within a relationship affects the person’s actions’ (1929: 61–2). Within these groups, according to Wimmer, it is highly probable – though not absolutely certain, hence his proviso (1929: 78–9) – that any offspring would suffer degeneration.

Notes 157

18 Consequently, Wimmer went considerably further than Geill, who made do with recommending a marriage ban. 19 The promotion of eugenics and sterilisation/castration in Denmark has already been well described by Lene Koch (1996; 2000), so only the aspects of the debate associated with the problematisation of crime are outlined here. It should be stressed that the debate on eugenic measures was mainly focused on negative eugenics – aimed at preventing procreation in order to ensure the long-term quality and survival of the race – while positive eugenics (the attempt to deliberately cultivate desired characteristics) failed to gain much traction in Denmark. 20 A flyer about the book is preserved and held by the Criminology Library, Faculty of Law, University of Copenhagen. It states that it ‘will open the public’s eyes to the main ideas in modern health thinking and its strategy to combat society’s enemies within: the criminals’. The boundaries between health education and criminology and health policy and crime policy seem here to have been abolished. 21 Like Bruun, Steincke conceived of the masses as consisting of undifferentiated entities. However, he was not concerned with the outright criminal masses but, instead, related the problem of the masses to overall material-historical conditions. 22 Steincke acknowledged Lombroso as one of the few who, like himself, had realised that society’s problems demanded more than social improvements (1920: 240). 23 At this time, Denmark’s first eugenics law had already been adopted, namely the Act on marriage and the dissolution of marriage of 1922 (Act No. 276 of 30 June 1922). It was the result of a pan-Scandinavian initiative involving the establishment of a Commission that was set up in 1910 and reported in 1913. One of the purposes of the Act was to regulate the marriage options of certain groups of people, specifically the insane and the severely mentally disabled (Act No. 276 of 30 June 1922: Section 10). This was done in the interests of ‘the health of the race’, as the report put it, which explicitly highlighted eugenics considerations (Draft Law on Marriage 1913: 58). As was the case when Wimmer and Steincke considered options for practical interventions, the Commission expressed some doubts about contemporary advances in eugenics science. For example, it was to ‘be remembered that experience of livestock breeding does not completely apply to people’ (Draft Law on Marriage 1913: 58; see also 373 ff., where the Medico-Legal Council – under its president, Christian Geill – also made reference to livestock breeding in its argumentation). Nevertheless, the law was passed, although it permitted the groups of people in question to marry if there was only a ‘small danger of their offspring being infected’ (Act No. 276 of 30 June 1922, Section 10). Clearly, crime-policy considerations did not dominate the Act. However, in response to the Commission’s question about hereditary diseases, the Medico-Legal Council reiterated the views previously submitted by Geill, including alcoholism’s hereditary nature and the benefits of asylums for drunks (Draft Law on Marriage 1913: 379–80). Alcoholism was not listed as an obstacle to marriage in the 1922 Act, but added as an amendment in 1938, after which chronic alcoholics were no longer allowed to marry without special permission (Act No. 141 of 13 April 1938, Section 1).

158 Notes

24 See also the Commission’s remit, which was ‘to study whether preventive measures and interference in personal freedom, with or without the individual’s will, for social reasons, including eugenic considerations, can be considered defensible and justified for persons of a degenerative nature’ (Report 1926: 5). 25 Note that this was not rejected in principle. It was just thought that the time was not yet ripe. Further scientific evidence was still needed. 26 ‘Such offspring, frequently poorly endowed from birth and neglected from the outset, will usually be destined to an existence that, for the individual concerned, will be burdensome and will not add anything to society, but rather in various ways will be a burden on society, through swelling the ranks of the workshy, prostitutes and criminals, and cause a heavy burden of maintenance without any commensurate social gain for their victims’ (Report 1926: 28). This description was backed fully by the aforementioned Attorney General and cofounder of the Danish Criminology Association, August Goll: ‘This identifies fully the poison that infects the whole of society’s moral hygiene, which from this offspring, as from a swamp, seeps out into society and spreads the moral infection to society’s organism. But this does not only apply to that which is visible. In purely biological terms, danger arises from the fact that large numbers of these offspring, without being sick themselves, carry the seed in their reproductive cells and are capable of passing it on to germinate in future generations’ (1934: 81–2). 27 This applied, for example, to the Act on Measures Concerning the Mentally Handicapped, 1934, which allowed for the forced sterilisation of even people with minor mental ailments. Further, the Act on Access to Sterilisation and Castration, 1935, inter alia, paved the way for the possibility of the forced castration of sexual offenders (Koch 1996: 107; Act no. 171 of 16 May 1934: Sections 4 and 5; Act no. 176 of 11 May 1935: Section 4; Le Maire 1946: 63 ff.). 28 As Greve (2002: 23) notes, Louis Le Maire made the case for castration as late as 1946. In his higher doctorate dissertation Legal Kastration i strafferetlig Belysning (Legal Castration in the Light of Criminal Law), he stressed that ‘the question of castration should be raised as soon as there is a medical basis for it: this will provide opportunities to avert an otherwise necessary detention and, in the individual’s and society’s interest, such options should be fully exploited, and not, as previously, partially thwarted by the authorities responsible for the enforcement of legal sanctions’ (1946: 221). 29 According to Kemp, it was therefore ‘appropriate to seek to identify the causes of crime and further analyse the hereditary diseases and anomalies that primarily affect criminals, and then study how these diseased units are passed down’ (1960: 197). 30 ‘The majority of prostitutes whom we examined, originate from the lowest status of society. They belong to a social group containing numerous individuals with slight mental defects – borderline cases, so to speak. [. . .] Within this class are to be found criminals, vagabonds, alcoholists and other antisocial individuals. It is this very “borderline group”, which presents so many social problems, and among the families in this category, pronounced hereditary taint is visible. A study of this group is therefore of primary importance to social hygiene and eugenics’ (1936: 5; see also 174–5). The basic pillars of Kemp’s work are quite clear in this study. Even though he argued that prostitution could not be analysed without

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31

32 33

34

35

considering social and legal issues, prostitution was nonetheless analysed ‘as a biological phenomenon’ (1936: 5). Kemp’s department also studied other problem groups. Of greatest significance was the socio-biological study of gypsies by Erik D. Bartels and Gudrun Brun (1943). The study was based on the perceived abnormality of the gypsy lifestyle, which was thought to be attributable to ‘hereditarily conditioned defects’. In short, ‘the gypsy problem, which is, besides, closely connected with the whole question of vagabonds and vagrants’ was considered a problem that had to be solved by genetic techniques (1943: 10). However, the study could not establish any significant links between gypsies and crime – minor offences were recorded, but nothing serious – and therefore no crime-policy implications were extrapolated (1943: 68–9, 171–2). For further discussions of Geiger, see Borch (2006; 2012). An amendment adopted in 1938 (Act no. 141 of 13 April 1938, Section 1) translated this argument into practice, forbidding marriage between the insane, the mentally disabled, severe psychopaths and chronic alcoholics. However, a marriage licence could be granted if the individual concerned consented to sterilisation. This underlines Foucault’s thesis that power dispositions do not replace each other completely. In other words, it supports the thesis that the relationship between sovereignty, discipline and government can usefully be described as a triangle, and that all three modes are identifiable today – although the weighting may be asymmetrical (2007: 107–8). In this context, ‘killing’ includes putting people at risk, excluding people politically, etc. (2003b: 256).

3 The rise and fall of the treatment ideal

1 According to Rose, ‘[t]hought becomes governmental to the extent that it becomes technical, it attaches itself to a technology for its realization’ (1999: 51). 2 At this juncture, reference is only made to the new special measures established with the Criminal Code, i.e. standard forms of punishment are ignored (imprisonment and fines), as well as sentences to mental hospitals, institutions for the mentally handicapped, etc. Note that, in practice, the special measures discussed here only applied to a minority of convicted offenders. However, ‘[b]ecause of the regularity and severity of their crimes, they were [. . .] considered a significantly greater problem for crime policy – and the actions taken against them as being of considerably greater policy significance – than their numerical proportion reflected on the face of it’ (Balvig 2003: 41). 3 This was expressed, for example, by Cai Jensen (1941: 105), who argued that ‘it is of the utmost importance that society, faced with this type of criminal, precisely while they are still quite young and mentally and physically receptive to development by favourable influence, seeks to make them useful to society and social life, whilst without such influence they would hopelessly sink down to the most dangerous and antisocial layer of habitual criminals’. See also Christiansen (1952) and Report (1953: 65). 4 This inconsistency had already been problematised after the publication of the 1923 Report, see e.g. Borgsmidt-Hansen (1925).

160 Notes

5 As mentioned in Chapter 2, the Prison Board was an innovation brought in with the Criminal Code of 1930, and comprised a judge, the Director of Prisons, a doctor with psychiatric training and one or more welfare officers. Making the Board responsible for decisions about the release of young offenders from juvenile prison meant that the matter was not a purely legal one in the hands of the courts alone, but a decision partly based on a psychiatric evaluation. 6 ‘His condition is examined and a file drawn up in which all the information about his past life is collected and kept up to date with observations about his work skills, behaviour and development’ (Hansen 1952: 122). 7 The faith in specific treatment-oriented measures was immense: ‘Placement in an institution for drunkards will surely prove to be a beneficial social measure. With a suitable programme, in many cases it will be possible to cure and wean people off their drinking and, in cases where this fails, a drunkard has at least been temporarily prevented from poisoning the rest of society with his stupor and crime’ (Arnskov 1932: 335). 8 The question of definition was much discussed, and several alternatives were proposed, see e.g. Reiter: ‘the very definition of what is meant by psychopathy [contains] problems. One of the best definitions was by Professor Helweg, who called psychopathy a “characterological deformity”. This both separates the psychopaths from the mentally ill and mentally disabled and defines psychopathy as a congenital, constitution-determined abnormality of development. It would be difficult to put it more clearly and concisely’ (Reiter 1942: 76, italics in the original). By contrast, Stürup refers to psychopaths as ‘the motley crew of individuals who respond quite differently than the average normal person, whose personality is so abnormal and who, for that reason, represent a nuisance to themselves or their surroundings’ (Stürup and Ebbe 1945: 72). See also Larsen (1952). 9 The description of how prisoners were to be treated deserves to be quoted in full, as it is exemplary of the faith in treatment through well-regulated individualisation, classification, disciplining and constant observation that was characteristic of this mode of problematisation: ‘On imprisonment, the prisoner is placed in a reception cell. There, he is bathed, clothed in prison uniform and has a duty to acquaint himself with the institution’s rules regarding the treatment. In the first month of the criminal sentence (the observation period) he is, as a rule, kept in isolation. Working time is 10 hours a day, and the prisoner should be set tasks that give him the opportunity to show diligence and proficiency. The work should, as far as possible, also be of such a nature that, if he does more than the mandatory amount, he may be granted a piecework payment. For the prescribed compulsory work, a daily reward is accorded, which the prisoner can use for postage, chewing tobacco, etc. They are allowed to write letters twice a month and to receive a letter from nearest family once a week. Visits may not take place. During exercise in the yard, the prisoners walk separately. The prisoner must be allowed photographs of his parents, wife, girlfriend or children. Outside working hours, the prisoner can be granted permission to take part in gymnastics and elementary schooling, and for leisure-time activity may be allowed blackboard, exercise book, writing materials and school books. Aside from the major

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holidays (Christmas, Easter and Whitsun), these prisoners do not have access to lectures or other leisure pastimes. At the end of the first month, the prisoner is transferred to one of the three stages mentioned below. The purpose of the stages is to facilitate the distinction between: 1 Prisoners for whom a reforming treatment only has limited scope, either because of the short sentence [. . .] or as the result of specific, abnormal predisposition. 2 Prisoners who can be disciplined and get used to regular, productive work, as long as they are coerced, but to whom, under 3) above, the full special treatment is deemed futile. 3 Prisoners for whom the use of the full special treatment with associated education, work training and other influence is deemed appropriate [. . .].

10

11 12

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Within the individual stages, the punishment is enforced according to a progressive system, so as to gradually accord to prisoners less working time, higher rewards for work, more free time in the fresh air’ (Report 1931: 15 ff., italics in the original). The purpose of the detention centres was set out in the 1931 Report’s recommendations, namely ‘to safeguard society against the dangers to the rule of law, which the persons detained in the institution would pose if at liberty, and, within the limits thus set, subject them to a treatment adapted to their particular mental condition so that they are fit to return to a free life. During the period of detention, which is not a punishment, but a precaution, efforts should be made to adapt conditions to suit the individuality of the detainee’ (Report 1931: 35; see also Stürup 1959: 11). Time and again, Stürup stressed that the treatment would be carried out in the name of humanism, see e.g. Stürup (1951: 239; 1959: 11; 1968a: vi; 1969: 204). The book’s title page and colophon testify that this was a work aimed specifically at experts: ‘This book is intended for use by doctors, lawyers and others who are professionally interested in social problems.’ And, it was added, the book was not to be ‘referred to or reviewed in the daily papers’ (Stürup 1951). Elsewhere, Stürup argued that ‘[w]e do not want to reshape the inmate in our pattern. Rather, we try to help him to grow and to make him the principal collaborator in shaping his own future’ (1968b: 5). Another passage states: ‘My main hypothesis is that the chronic criminal is his own most important therapist; it is our job to help him carry out his difficult task’ (1968a: ix). Stürup had many ideas on how the close relationship between the therapist and the person treated could be secured. Above all else, a relationship of trust had to be established, which demanded a great deal of the institution. Stürup therefore discussed a number of techniques that could foster such a relationship. The reception for an inmate was considered absolutely central, for example. Stürup considered the extent to which the inmate should be met with handshakes from the staff, or not. Conclusion: yes, if it was a new inmate; no, if it was one who returned after an unsuccessful trial release (1968a: 23–4; 1972: 199). The psychotherapy was envisaged as being individual and/or in groups. Particularly in the light of experience from the mid-1940s, Stürup and others also argued for the use of group therapy (drama, role playing, etc.) as part of the overall therapeutic treatment (see, e.g. Feldman 1956; Larsen 1956; Stürup, Feldman

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and Hoeck-Gradenwitz 1957). Rafael (1960) and Larsen (1960) argued, by extension, that group therapy should be used in state prisons as well. In the words of Erik Hoeck-Gradenwitz, chief psychologist at Herstedvester, ‘[t]he term “anamnestic analysis” is defined in this context as a method that encourages the patient to emotionally and intellectually relive past interpersonal conflicts on the basis of his attitude in current interpersonal situations’ (1961: 127, italics in the original). Hoeck-Gradenwitz placed great emphasis on the interpersonal element, and therefore saw the treatment of criminals as both a social-psychological problem and a social learning process: ‘Aside from juvenile delinquency, trivial crime and perhaps a few cases of situationally-determined crime, offences are a sign of a lack of social learning and poor interpersonal relationships. Thus, it is the task of social-psychological treatment to introduce a new social learning process, which is conducive to better interpersonal relationships and a higher degree of adherence to norms’ (1961: 124, italics in the original). Regarding the social-protection dimension, see also Knud Sand who argued that ‘the legal castration is in this country a kind of precaution to protect society against sexual predators, calculated to make them harmless (acriminal) and socially free or more freely usable. Even the hitherto unused forced castration can be thought of as society’s most extreme method for these purposes. In this way, legal castration differs from many punishments in that it seeks to attack the crime-inducing evil at its root and sanitise the offender by removing the evil. It is thought of as a rational, radical, causal and also humane method’ (1939: 355, italics in the original). ‘In the terms and conditions of release [. . .] it is normally set out that the person concerned must submit to the supervision of the institution and comply with the board’s guidelines, including that he does not change residence or work without the prior permission of the board and that he is obliged, if he becomes unemployed or his circumstances otherwise justify it, to be put in a hostel home or other similar institution. However, special conditions may also be attached, for example, that a man may not reside east of the Great Belt, that he must not visit beaches, parks and playgrounds, and on one occasion a man was released on condition that he was not allowed outside of his residence without being accompanied by a designated person’ (Skriver 1946: 161). Release must therefore not be confused with freedom (see also Foucault 2009: 17). This refinement resulted, inter alia, in studies of increasingly differentiated groups of criminals, such as deaf and dumb people (Remvig and Stürup 1957). According to Christiansen, ‘two things in particular will be important in a preventive crime policy: Early detection and treatment of individuals who, because of hereditary mental defects or defective social conditions, are at particular risk. And a general clearing up of the social evils that seem to form the basis for such a significant part of crime’ (1943: 68; see also 1945: 49–51). He made the same basic point in a contribution to the report Om alkoholmisbrug og kriminalitet (On Alcohol Abuse and Crime), which particularly emphasised social hygiene: ‘In short and in general, it can be said that the best crime policy is good social policy’ (1960: 141). Durkheim was not discussed at all in the first edition of Hurwitz’s book. Mass crime was, however, and Hurwitz (1948: 363–4) referred to a number of the central crowd-psychology works, including Tarde’s. The topic of crowds and the

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26

liability of members of criminal crowds had also been discussed in some of his earlier work (see 1933: 36). See, e.g., Bruun’s Forbrydelse og Samfund (Crime and Society) and Hurwitz Forbrydelse og Samfund (Crime and Society, 1937). This basic point of view had already been stated in Høgh (1960). See also Svalastoga (1961). An idea that was similar to Foucault’s later reflections on the ‘carceral system’ (1977: 271). According to Wolf and Høgh, for instance, ‘[i]t is high time consideration starts to be made of how our punishment measures (including forms of treatment that are said to “take the place of punishment”) accord with the objectives of crime policy and our general cultural and social values’ (1966: 103). The critique of imprisonment is discussed in Chapter 4. At this juncture, only treatment will be discussed. ‘We have had a significant tailwind and recognition. There are now signs that assessments of our work are changing’ (1969: 194).

4 Serving the community

1 The study was not, however, only of prison as a form of punishment as such, but also of the prisoners. For example, the authors demonstrated that the inmates could not be categorised as a special group of individuals whose approach and attitudes to life deviated from normality. On the contrary, based on the prisoners’ self-descriptions and self-evaluations, it was documented that at least ‘the majority is characterised by conventional attitudes’ (1969: 108). As with Vagn Greve’s later study, this highlighted the criminals’ normality. 2 This can be seen in the context of a general institutional critique at the time, a period of increasing scepticism about the idea of transforming individuals through excluding them from society by incarceration in institutions. This critique led, for example, to general anti-psychiatric currents (see e.g. Clausen 1970). 3 Among these alternatives were the British attendance centres (day training centres), in which young offenders, instead of being imprisoned, would spend up to a total of 24 hours (two of these every Saturday) in a special, strictly disciplined, centre where they would spend their time cleaning, doing physical exercise, etc. Regarding the technological sophistication of this measure, Rentzmann noted that, ‘[t]here is no doubt that the sanction is perceived as unpleasant, especially as great care has been taken to make the two hours coincide precisely with the time at which professional football games are played. For this reason, among others, but especially considering how the discipline is exercised, I think that this sanction would be contrary to the normal Danish concept of humane treatment’ (1975: 172). 4 And not just – as with the lay judge element in the courts – in the sentencing. Another, earlier involvement of private forces that is also worthy of note was the prison companies that were brought together in 1951 under the umbrella of Dansk Forsorgsselskab (Danish Society of Prisoners’ Aid) and worked to rehabilitate released prisoners (see Dansk Forsorgsselskab 1991 for the background). This assistance was only formally private – in reality, it depended

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7

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on state funding. In 1973, the supervisory work carried out by the Danish Society of Prisoners’ Aid was transferred to the public sector, to the Danish Prison and Probation Service. The work of the Service would lend itself brilliantly to an independent study of normalisation processes (see also Kyvsgaard 1998). As is clear from these points, a link was established between normative considerations (humanity) and efficiency, which was carried over into the recommendations. However, similar ideas regarding so-called furlough, in which an inmate was allowed access to a job or education, garnered support (see e.g. Rentzmann and Reimann 1994: 167 ff.). Another option was for ‘alternative sentences’, where the Probation Service would decide whether to allow an individual to serve his or her sentence in institutions other than the prison if special circumstances (including medical needs) made this appropriate (see also Kyvsgaard 2001: 104–5). In other words, some of the basic ideas behind the overnight prison were implemented. See the following assessment from the English report: ‘To some, it would simply be a more constructive and cheaper alternative to short sentences of imprisonment; by others it would be seen as introducing into the penal system a new dimension with an emphasis on reparation to the community; others again would regard it as a means of giving effect to the old adage that the punishment should fit the crime; while still others would stress the value of bringing offenders into close touch with those members of the community who are most in need of help and support’ (Report of the Advisory Council on the Penal System 1970: 13; see Report 1977: 87). For the history, see especially Rentzmann and Reimann (1994: 61 ff.); see also Vestergaard (1989b); and, for Swedish experiences, Bondeson (2002). For slightly differing analyses of Anglo-American conditions, compare Garland (2001: 123) and Cohen (1995: 116 ff.). Or to put it in a more constructivist manner: Christie’s model served as a tactical element in the construction of the community as such. More on this point later. Annika Snare (1995: 74–5) notes – in comparison with international and topical discussions – the highly defensive and restricted nature of victimology in Hurwitz and Christiansen’s joint textbook in criminology, in which victimology was referred to as ‘the study of the relationship between offender and victim. The importance of the influence of alcohol on the victims of violent crime is one example of a fruitful field of research for victimology’ (1968: 14). It may be added that an even more modest role was attributed to the victim in the first edition of the textbook (see Hurwitz 1948), in which the victim perspective was not mentioned at all. For the history of the concept of victimology from a Danish point of view, see Nielsen and Snare (1998). It has been typical of pilot schemes that victim–offender meetings are not seen as a substitute for imprisonment, but rather a supplement. It is therefore open to debate whether a chapter that focuses on alternatives to imprisonment is the correct place to discuss this. However, on the theoretical side, arguments have always been made for the need to make the model a clear alternative, as is the case in Norway. This is a significant difference compared to community service, where the offender works directly for the community, but not directly for the victim.

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14 According to the Crime Prevention Council, ‘[o]ne basic idea of victim–offender conferences is that disputes are resolved locally, and local people are involved’ (1997: 30). 15 On the whole, mediation has been promoted as a universal technology that is far from restricted to criminal matters (e.g. Adrian 2001; Boserup and Humle 2001). Indeed, discussions about and recommendations for mediation have flourished since the late 1990s, just as victim–offender conferences, restorative justice and conflict resolution are presented as effective instruments in the legal field (Døllner 1991: 231 ff.; Vindeløv 1997; 2004), in the school (Det Kriminalpræventive Råd 2003), in relation to conflicts between young people and their parents (Sareen 2003: 160 ff.), etc. 16 For example, ‘[f]ind out who will speak first – it may be a good idea that the person who is most annoyed is allowed to start’ (2001a: 5). 5 Crime prevention: towards a totalitarian biopolitics

1 According to Hurwitz, in the crowd the basis is ‘created for a criminal group morale, a perverted esprit de corps capable of breaking down all normal individual barriers to criminal acts. It represents a real acknowledgement in terms of crime policy that, under certain circumstances, measures are taken to stop such a situation from emerging by banning extreme political movements from wearing uniforms’ (1948: 363). 2 The same idea was also put forward a number of years later by others, including Wolf and Høgh, who recommended that policy could ‘focus on methods of preventing and combating crime that are designed to make it more of a risk, more difficult and more uncomfortable to act in a criminal manner in the actual situation where individuals are faced with the choice of acting illegally or not. Trivial examples of such means are better security locks on cars, stronger safes and better protection of valuables in general. It is mainly a matter of purely physical protective measures that, in the actual situation, will encourage non-professional criminals to abandon their projects’ (1973: 159). 3 Regarding the organisation of the Council, it should also be mentioned that the Secretariat is part of the National Police, and that its focal point is a plenary session attended by representatives of numerous organisations (such as the Council of the Danish Bar and Law Society, the Danish Union of Teachers, etc.). 4 The work of the Crime Prevention Scheme Advisory Board regarding ‘the establishment of the ways of acting, routines and the likes of a non-technical nature, which can be used to prevent crime against persons and property’, however, will not be analysed separately, as several of the recommendations overlap with other regulations (1992a: Appendix 3, 32). 5 For example, the Crime Prevention Council suggested that ‘[i]t may be a good idea to organise a parents’ evening where the theme is: What threats do our children face? What can we do together to prevent them?’ (1991a: 7). 6 The shift from the healthy lifestyle to the good life signifies an almost imperceptible linkage between the healthy and the moral. 7 This may sound contradictory and relates to a tendential reorientation of the Council’s recommendations. In its first proposals for the SSP partnership, the Council leaned heavily on the intellectual capital of stigmatisation theory

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and advocated a general approach. As Kyvsgaard (1990: 33) notes, since at least the late 1980s, the Council’s recommendations show that a general approach does not preclude more specific measures. See also the following: ‘A general crime-prevention partnership should be based on young people who are not disadvantaged. This does not preclude specific measures for groups of disadvantaged children and young people’ (1988: 4). See, e.g., the Danish Society of Engineers and Engineering Association’s norms for technical prevention of burglary, in which builders, architects, engineers, etc. can find detailed requirements for the design of railings, access-control systems, locks and key systems, lighting, etc. (Dansk Ingeniørforening og Ingeniørsammenslutningen 1991). By contrast, subjective crime prevention attempts to prevent people from becoming criminals. In the following, I focus primarily on the recommendations found in two publications from the 1990s and early 2000s. The first, Kriminalpræventiv boligprojektering. Boligplanlægning med tryghed og trivsel (Crime Prevention and Housing Planning: Planning for Security and Well-being) was published with ‘the aim of incorporating the crime-prevention aspect as an integral part of any house-building project’, because ‘the publication’s basic proposition is that it is possible to prevent crime through the conscious design of outdoor areas and of buildings for housing and for public events’ (1996: 3, 6). The idea behind the second publication, Trygge Boligområder. Forslag til kriminalpræventiv renovering (Safe Housing Areas: Proposals for Crime-Prevention Renovation), was, as the title suggests, ‘that the crime-prevention component is incorporated into the thinking as early as the planning stage of renovations [of housing schemes]’ (2001b: 3). The recommendation for crime-prevention lighting is a recurring theme in environmental planning and has been recommended in virtually every context. For example, a regulation for stairwells in blocks of flats specifies that ‘[t]he lighting should be directly downward and be located next to each entrance so that light falls on anybody standing at the door. The fixture should emit a warm hue, and all corners should be illuminated’ (2001b: 6). In 2000, to promote the use of crime-prevention lighting, the Council began to reward ‘the outdoor lighting town of the year’ (2001d: 42). See, for example, the recommendation of creating ‘SEMI-PRIVATE ZONES WITH EFFECT – The private sphere starts with the garden, so you do not enter into the stairs unless you have a legal purpose. The bike can be seen from the apartment. The man with the cigar sitting outside knows everyone – including the children, who used to be afraid of “the stranger”. Life on the benches provides social contact and control in a good way. This is where conversations start – and continue to the boules, barbecue and football’ (Christensen and Ærø 2003: 17, emphasis in the original). However, not just any old form of decoration was welcome. For example, graffiti, according to the Crime Prevention Council, ‘signals disorder and lawlessness’ (2001b: 28). Another community-building technology not limited to blocks of flats was the promotion of the ‘Neighbourhood Watch’ scheme launched in 1987 by the Crime Prevention Scheme Advisory Board. Its recommendations included that neighbours look after each other’s houses/apartments when residents were away

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on holiday. However, Neighbourhood Watch ‘is not just a matter of help during holidays. Good neighbourliness can also be of great help in day-to-day life. Make sure your neighbours know about your normal daily routine – when you go to work, when the kids come home from school, etc. That way your neighbours will notice if anything unusual happens’ (Det Kriminalpræventive Råd 1994: 3). If the planning of the renovation ‘establishes a genuine tenant influence on the design of the building, it will strengthen a shared sense of responsibility among the residents. This will result in a reduction of theft, vandalism and other destructive behaviour’ (1996: 9, italics added; see also 27). For example, the Crime Prevention Council suggested that ‘[i]t would [. . .] be appropriate to ask doctors (and others) to regularly describe the housing environment on the basis of systematisations of everyday information, e.g. information about housing hygiene, the usability of the homes for people with disabilities, the assessment of social issues, including social networks, opportunities and lack of desirable options for changing home without moving away from the area’ (1984: 60). Although I am primarily interested in the governmental rationality inherent to the Council’s recommendations for crime prevention, it should be emphasised that several examples of the above suggestions have been translated into practical projects in Denmark. For example, Sibelius Park in Rødovre and Egebjerggård in Ballerup were built in the 1980s and 1990s along such crime-prevention lines (Christiansen et al. 1996). In the Council’s publication, Kriminalitetsforebyggelse i lokalsamfundet (Crime Prevention in the Community), it is phrased the following way: ‘Our immediate environment can be geographically defined as town, district, building. In addition, there is a more difficult dimension, namely the sense of community, shared identity, common problems, common interests, shared institutions and shared resources’ (Hermansen 1987: 8). In one of the Council’s publications, it is stated that ‘the social network has [. . .] importance because contact with other people is fundamental to every human. [. . .] The social network’s presence and function [are], however, not something that can be taken for granted. Rather the opposite, perhaps, because a number of forces and processes in modern society pull in the other direction. The generations of the family live separately. The distance between home and work has increased, which divides our lives and our contacts up into work and leisure. The distance also puts a strain on our lives with long, often inane, journey times to our work and to visit friends and family’ (Hermansen 1987: 7). In addition, when, in spite of modernity, ‘some kind of sense of belonging to the community is generated at all, it assumes, to a starkly reduced extent, the nature of a local social network; the sense of belonging is formed more by the feeling of belonging among a host of anonymous contacts with whom people just feel on the same “wavelength” [. . .] It goes without saying that this sense of belonging is superficial, and in critical situations is vulnerable’ (1984: 7–8). A clear idyllisation of ‘rural communities’ is sensed in these observations (1984: 14; see also Wolf and Høgh 1973: 159–60). Pløger hits the nail very precisely on the head: ‘Understand, however, that not everybody has to be engaged in everything. Some serve their time in the sports club, others on the board of the nursery, but maybe not both places and maybe

168 Notes

nowhere. Let the idealists meet in the residents’ café, but they have to accept that I want to be a stranger among strangers’ (2002b: 2). The interesting question is, therefore, whether the strong promotion of collective local responsibility leaves room for remaining a stranger among individuals (neighbours) who are committed to the community and thus no longer appear as strangers to each other. 21 Many suggestions have been offered as to how unwanted interactions – and thus the possibility of crime – can be prevented. One preventive measure is the use of CCTV (Det Kriminalpræventive Råd 2001c). Another technique is the playing of loud opera music at Copenhagen Central Station, which makes certain entrances unattractive to drug addicts and therefore is thought to reduce the fear of crime and disorder. The same governmental rationality is at play in the recommendations for the design of toilets in city centres and shopping centres, as formulated by Danish Standards: ‘As far as possible, the design, choice of materials and installations should ensure that the toilets cannot be used as “exchange centres”, e.g. for stolen goods and drugs. Loose ceiling tiles, freestanding cisterns, etc. create good conditions for “exchange centres”’ (Dansk Standard 2000: 31). Sibley interprets such proposals as recommendations for a form of ‘spatial purification’, in which deviations are identified as problematic or even dangerous, and therefore to be deposited elsewhere, to be exported (1995: 77). See also Davis on ‘spatial apartheid’ (1990: 230). 22 One objection to this description is that the Crime Prevention Council fluctuates in its recommendations on whether the composition of the population in a community should be homogeneous or heterogeneous, i.e. whether identity or difference is more important. For example, on the one hand, it is noted that housing schemes ‘as far as possible [ought to be] designed so that there is a possibility of integration of people with different ages, social and ethnic backgrounds’ (1996: 10). On the other hand – and this is crucial – this diversity must be understood as an attempt to assist vulnerable groups through interaction with strong ones. By resourceful individuals becoming actively involved in the community and acting as pillars of it, space is created for weaker individuals to get involved. In this sense, the weighting of heterogeneity is just a means to promote identity. 23 In relation to this interpretation, it should be emphasised that the concept of risk is not explicitly prominent in the twentieth-century problematisations of crime in Denmark (for one exception, see Balvig 1999). 6 Empowerment and repression

1 Which has nothing to do with Foucault. 2 In contrast to the anamnestic analysis, it ‘is therefore stressed to the new student that the school does not consider what they have done in the past to be crucial. What matters is what they do for the future’ (Direktoratet for Kriminalforsorgen 1991: 92). 3 The working party also placed great emphasis on ‘the inmate being actively involved in drawing up the treatment plan’ (Direktoratet for Kriminalforsorgen 1991: 57). In other words, there was no question, unlike in the previous treatment era, of professional experts determining what is best for the inmates. Rather, the ‘patients’ should now play an active role in the formulation of their own goals.

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4 As per impact pedagogy, there have been examples of inmates being expelled from the ward because they did not wish to contribute to the collective (Philip 1998: 13). 5 ‘Part of the remit of the Ministerial Committee on Children consisted of defining firmer and more immediate responses to these young people. The main idea is that a firmer and more consistent approach by the authorities will enhance young people’s sense of responsibility’ (Ministry of Justice 1988: 6). Since the beginning of the twenty-first century, attempts have been made to realise a similar purpose through the so-called youth sanction. The idea here is that ‘severely maladjusted young offenders’ have to be met with consistent and direct reactions – more precisely, with a two-year educational treatment plan, of which a period of up to one year must be spent in a secure residential institution (Ekspertgruppe om ungdomskriminalitet 2001: 11). The treatment includes the type of cognitive methods described below. The youth sanction has features in common with the old youth prisons (Greve 2002: 174) and therefore marks a return of the governmental rationality inherent in the latter. However, the currently prescribed treatment technologies do not so much target moral improvement as influence young people’s social skills (see also Vestergaard 2000). 6 The youth contract scheme was made permanent in 1998, but with the important revision that compliance did not mean that the offence would be deleted from the individual’s criminal record. Only that the length of time it would remain on the record was reduced (Kyvsgaard 2001: 106). 7 Andersen also talks about ‘contracts as a medium for the citizen’s self-relations’ (2003: 9). Following on from the discussion of restorative justice meetings in Chapter 4, the meeting can be said to turn the agreement into a medium for the criminals’ and the victims’ self-relations. 8 According to Storgaard, for example, ‘[e]ven after some five years, AII and AIII are still a flagship in the Danish prison service. Even though other moves are afoot to import treatment for addicts, the two wings are still the only example of the idea in practice, and they present themselves really well. Here is something we can show off to visitors with pride, whether they be Danish politicians, representatives of prison systems abroad or other academic and professional partners’ (2003: 34). 9 Since there are different variants of the Minnesota Model, this description may vary in some respects from how this treatment is understood in other contexts. 10 A daily schedule for the inmates is given in Storgaard (1999b: Appendix 3). 11 This and the following are based on Storgaard (2001: 129–30; 2003: 34–5). 12 There are exceptions to this day programme. On Sunday, inmates are allowed to spend an hour in their cells, and trips may be arranged to cultural or sporting events. 13 See Andersen about the social policy transformation from what are referred to as first-order to second-order level help needs: ‘A first-order help need is one that ameliorates a problem. For example, the need for assistive devices in the home, the need for respite, need to spend time in rehab, need for home visits, etc. This is first-generation social policy. Needs of the second order are needs that diagnose the individual’s self-relations as a problem. These problems include lack of selfresponsibility, lack of motivation and lack of family responsibilities. On the one hand, the client is invited to be the co-formulator and co-negotiator of his

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or her own problem. On the other hand, the problem is no longer there. The second-order problem is the client’s problem in relating to his or her problem’ (2003: 82). Expressed differently, it is about the movement in state schools from grade books to logbooks (Hermann 2003: 248) which, within the recommendations of cognitive criminology, is offset by a shift from the classical (Stürup) psychiatric treatment to the current self-analysis (regarding the latter, see Oestrich 1986: 111–12). See, for example, Rosenberg and Mørch: ‘We believe [. . .] that cognitive forms of therapy are best administered by therapists with extensive clinical experience, including self-therapy and knowledge of psychopathology’ (1995: 25). According to Philips, ‘[n]o previous knowledge is required to teach in this programme [teaching criminals with a lack of social skills]. The only requirement is that the persons selected to become teachers are open, not didactic and themselves use the tools that they teach’ (1993: 19). In this context, ‘mass crime’ does not refer to crime committed by the masses but to the quantitatively substantial volume of crime, especially property crime. In addition, the 1973 reform led to closer focus on patrolling by car, which, it was believed, probably made some aspects of police work more effective, but also ‘may have contributed to a certain alienation in relation to the population’ (Langkilde 1983: 623). The National Commissioner’s 1996 discussion paper Fremtidens politi (The Police of the Future) established a connection between security-building initiatives and quality of life (Rigspolitichefen 1996). As with the crime-prevention linking of crime and health, this paved the way for an infinite field of intervention. This draws on Weber’s characterisation, according to which ‘legal coercion by violence is the monopoly of the state’ (1978: 318). Importantly, neo-conservative trends in the political field are not restricted to parties that are traditionally associated with the right wing. On the contrary, they – like advanced liberal rule – can be identified on both the right and left (see Balvig 2003: 39–40).

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Index

alcoholism/alcoholics 33–5, 37, 39, 42, 45–6, 49, 57, 67–8, 71, 96, 121, 125, 154n5, 157n23, 159n33, 162n20, 164n11 alternatives to imprisonment 18, 25–6, 38–42, 46, 49, 77–95, 141, 146 analytics of power 3–5, 9–17, 82, 119, 143–4 anamnesis 64–5, 168n2 Andersen, Niels Åkerstrøm 128–30, 135 atavism 24, 30 Balvig, Flemming 80–1, 149 Bartels, Erik D. 159n31 Becker, Gary S. 14, 148 Bentham, Jeremy 2, 7–8, 10, 106 Bergh, R. 154n3 Berning case, the 155–6n13 biopolitics 2, 7–8, 12–13, 16, 24, 46, 48, 50–2, 95, 103, 113, 118–19, 142, 144–5, 147 biopower 12 Borstal system 56 broken windows thesis 107 Brun, Gudrun 159n31 Bruun, Viktor 46–7, 52 Brydensholt, Hans Henrik 81, 89–90, 92 Castel, Robert 116–19 castration/sterilisation 17, 36, 42, 47–51, 66, 72–3, 75, 114, 116, 145, 157n19, 158n27, 159n33, 162n17 Christian VIII 22 Christiansen, Karl O. 69–71, 74, 162n20, 164n11 Christie, Nils 88–9, 164n10 cognitive skills training 120, 130, 133–6, 147

community service 18, 77, 82–7, 89, 92, 128, 141, 146, 164n13 confession 99, 125, 131 community 18, 77–80, 84–8, 91–4, 102, 104–12, 115–16, 120, 128, 136–40, 146 community policing 18, 77, 79, 120, 136–9, 147 conflict as property 89 consequence 123–4, 126–8, 133–4, 140; see also impact pedagogy contract prison 120, 122, 124, 126, 129–30, 133 contracts, control by 18, 77, 79, 120, 126, 128, 141, 147; see also youth contracts, contract prison control 18, 46, 119, 142 Cornier, Henriette 27 correction, house of 21–2, 28, 67–8 crime: and abnormality 17, 24, 38, 41; and aesthetics 107; and class 70–2; and coercion 9, 128; and genetics 46–51, 65, 71, 145, 162n20; and health 12, 34, 46, 70, 100–1, 114, 118, 147, 170n19; and imitation 27; and social factors 25, 29–30, 36, 44, 47, 49, 65, 69–71, 84–7, 91, 95–7, 99, 101, 117, 133, 140, 144, 147, 167n16; as mental contagion 33, 52; as normality 11, 49, 75–6, 95–6, 118, 140, 146, 148–50, 156n16, 163n1; as choice 99, 113, 131, 133, 140, 165n2; disposition toward 24, 26–7, 30–3, 35, 53, 65, 76, 99, 117; fear of 90–1, 105, 114, 139, 146 crime, pathogenesis of the 33 Crime Prevention Council, Danish 95, 114, 163–4n6 crime prevention 18, 47, 77, 93, 95–109, 120, 135, 137–9, 141–2, 146, 149;

188 Index crime prevention information 97–9, 103, 113; crime prevention by planning residential environments 103–9, 111–12, 114–15, 135, 138; see also SSP (social work, school, police) collaboration crimes of passion 24, 44, 152–3n2 criminal anthropology 23–6, 28–44, 52, 55, 71–2, 153n6, 154n3 criminal biology 69, 71 Criminal Code, the: of 1866 17, 19–23, 28, 30, 34, 36–42, 153n3; of 1930 40–2, 51, 54–7, 69, 75, 145, 160n5; of 1973 75, 81–2 criminal psychology 23–4 criminal legal responsibility 20, 38–9, 41, 72, 156n16 criminals: children/young people 20, 26–7, 34, 37, 41, 43, 56, 75, 90, 97–107, 113, 120, 124, 126–8, 140, 147, 162n16, 163n3; capable of reform 28, 31, 41, 144–5; born 24, 26, 33, 43, 46, 58, 61, 116; illegal deeds vs perpetrators 19, 28, 30, 34, 38–9, 54, 56, 86, 145–6; chronic 40, 60, 66, 69–70, 74, 162n20; crowds/ masses 27, 33, 46–7, 96, 137, 162n21; situations 66, 92, 95–7, 117, 135, 138, 146, 148; incorrigible 26, 28–31, 35–6, 40, 59–60, 68, 141, 145 criminal sociology 69–71, 76 criminal type, the 24–6, 28, 44, 58, 145, 153n6, 154n3 criminogenic situations 92, 96–7, 118, 135, 138, 148 criminology 2–4, 9, 17, 19, 24–5, 30, 32, 34, 51, 69, 71, 89, 141, 150, 167n20; the French School 23, 27, 69, 71; the Positive School 23–32, 52; the German School 23, 27; clinical 59–69, 74, 145 Dahl, Tove Stang 155n6 danger signs 102–3, 113, 147 danger/threat to society 25, 30, 34–5, 39–53, 56–7, 72, 74–5, 116–18, 142, 154n13, 155–6n13, 159n3, 161n10, 162n17, 168n21 Danish Criminology Association, the 37, 39–40, 42, 115n26 Danish Society of Prisoners’ Aid 163n4 Davis, Mike 168n21 death penalty 35, 153n12 degeneration 23, 24, 28, 30, 33–5, 37, 43–5, 47, 50, 52, 58, 61, 72, 75, 145, 150, 154n13; moral 43

Deleuze, Gilles 119 deportation 26 deterrents 19, 22, 28, 31 differentiation: functional 110, 115–16; segmental 116 discipline 1–4, 10–17, 21–2, 36, 49, 52, 62, 67, 75–7, 119, 131, 142, 144 drunks, asylums for/drunkards, institutions for 35, 42, 57, 75, 157n23 Durkheim, Émile 23, 27, 69, 71, 154n14, 162n21 education 21–2, 24, 35–7, 41, 45, 48, 56–7 empowerment 18, 92, 120, 129–33, 139, 141 Engbo, Hans Jørgen 136 eugenics 17, 36, 42–54, 66, 116, 150 expertise 30, 55, 76, 117, 135, 149–50 Ferri, Enrico 25–8, 38, 41, 59, 68, 144 Foucault, Michel 1–18, 50–2, 62–3, 68, 75, 80, 118–19, 121, 131, 143, 145, 150, 153n4, 153n12, 168n1 Fauconnet, Paul 69, 71 free will 19, 38–9, 42, 54, 67, 72, 92, 113, 124, 129–30, 144, 148 Garde, Peter 75 Garland, David 2, 23–4, 31, 54–5, 140–1, 154n1, 164n9 Garofalo, Raffaele 25 Geiger, Theodor 50 Geill, Christian 32–9, 41–2, 45, 57, 69, 95–6, 120, 157n18, 157n23 general prevention 19–20, 22, 30, 81 Goll, August 40, 57 Gordon, Colin 13 government/governmentality 2–4, 6, 12–16, 18, 23–4, 36, 51, 55, 62–3, 68, 75, 79–80, 131, 141, 144; advanced liberal 16, 18, 79–80, 99, 121, 128–9, 140–2, 147; neo-conservative 121, 140–2; welfare-state 89–90, 139–40 Greve, Vagn 32, 76, 158n28 Gros, Fréderéric 6 Gudmand-Høyer, Marius 5 Habermas, Jürgen 79 habitual criminals 24–5, 29, 31, 35, 156n16, 159n3 Hamel, Gérard Anton van 27, 29 Hansen, Søren 154n3

Index 189 Helweg, Hjalmar 160n8 Herstedvester 55, 59–62, 73–5 Hindberg, E.G.A. 22 Hoeck-Gradenwitz, Erik 162n16 Holmberg, Lars 137 Hurwitz, Stephan 71, 96, 164n11 hyperinclusion 68 Høgh, Erik 71–3, 95, 165n2 impact pedagogy 124, 168n4 import model, the 120–1, 130–1 imprisonment: critique of 18, 25, 34–5, 40, 73, 146–7; see also alternatives to imprisonment, contract prison, psychopath prison, young offenders’ institution improvement 19–21, 26, 28, 31, 36, 56, 60, 67, 135, 144, 169n5 inclusion/exclusion 110, 112, 141 individualisation 20–2, 26, 30–1, 36–42, 45, 50–1, 55–9, 64, 67–9, 74, 86, 144 insanity 24, 26, 30–1, 33–4, 41, 50, 58, 157n23, 160n8 internment 17, 26, 34–42, 51, 57, 59, 75, 145 isolation 10, 21, 26, 49, 51, 67, 115, 144, 153n4, 160n9 Iuul, Stig 20 Jacobs, Jane 144 Jung, Carl G. 64 Kemp, Tage 49 Kinberg, Olof 96 Kirchheiner, Knud 73 Koch, Lene 48, 157n19 Kraft, Alexander 154n2 Kristensen, Jens Erik 118 Kurella, Hans 153n6 Kyvsgaard, Britta 87, 165n7 Langkilde, Jørgen 137 Larsen, Ole 161n15 L’Union Internationale de Droit Pénal (International Association of Penal Law, the) 29, 37–8, 41 Le Maire, Louis 158n28 Liszt, Franz von 23, 27–9, 31, 33, 36–8, 41, 59, 69, 144, 155n6 lobotomy 65 Lombroso, Cesare 23–5, 28–9, 31–3, 37, 41, 44, 46, 49, 52, 55, 58, 69, 116, 144, 148–9, 157n22

Luhmann, Niklas 1, 5, 68, 79, 110–12, 115–16, 150–1 Marer, Johannes 154n3 marriage ban 33, 45–7, 50, 145, 157n23 Marx, Karl 46 mediation 87–94; see also restorative justice Mouffe, Chantal 154n13 Munck, Vilhelm 22 Møller, Elisabeth 67 neutralisation 25, 31 Newman, Oscar 114 Nielsen, Beth Grothe 155n6 norm/normalisation 11–12, 22, 41–2, 50, 56, 67, 99, 110, 112, 118–19, 139, 155n11, 163–4n4 normalisation principle, the 121–2 occasional criminals 24–5, 44 O’Malley, Pat 119, 139–41 Palmer, Darren 139 parole, release on 26, 35, 56, 59, 66, 73 power 2–6, 9–18; and distanced form of government 100, 129; and freedom 9, 12, 16, 79, 129, 143; and truth 6, 15, 17, 50, 150; of contracts 127–30; productive 2, 10–12, 15–16, 143; sovereign 2, 4, 6, 9–13, 16–18, 51, 79, 140–2, 144–5, 149; see also biopolitics, biopower, discipline, government/governmentality, norm/ normalisation Philip, Bodil 121, 133–4, 136 Pløger, John 110–11, 115, 167n20 pre-sentencing reports 85–6 preventative detention 40–2, 57, 59–60, 75 Prins, Adolphe 27 Prison and Probation Service, the 85–6, 122, 164n4 problematisation analysis 1–9, 17, 120, 143, 148 prophylactic power 46, 113–19 prudentialism 119, 147 psychopath detention (Herstedvester) 57, 59–72, 75 psychopath prison 42, 57–9, 73–5 psychopathy/psychopaths 57–9, 69, 72, 75, 121, 145, 155n13, 159n33 psychotherapy 64, 74 Rabinow, Paul 110 Rafael, Carsten 161n15

190 Index recidivism/recidivists 25, 28, 38, 40–1, 57, 69, 72–3, 80, 83, 122, 136, 149 reflexive law 89 rehabilitation/resocialisation 54, 56, 66–7, 82–3, 92, 135–6, 146–8 religion 21–2, 24, 31, 51, 67–8, 132 rendering harmless 28–9 Rentzmann, William 81–2 repressive tendencies 25, 126–7, 140–2 restorative justice 77, 87–94, 141, 146, 169n7 risk 92, 95–6, 113 Rose, Nikolas 16–18, 54, 79–80, 99, 119, 129, 147 Sachs, Jan 73–4 safety/precautionary measures 20, 36, 38, 41, 54, 64, 141, 161n10, 162n17 sanctions, open-ended 41–2, 75 Scharf, Ole 138 Schmidt, Lars-Henrik 118 self-management 78, 88–9, 108, 110, 112, 115, 122–4, 126, 130, 138 self-techniques 15–16, 21, 62–3, 65, 68, 76, 79, 92, 104, 143, 152n3; religious 22, 51, 67 Sibley, David 168n21 Smith, Peter Scharff 22 Snare, Annika 164n11 social, the 8, 25–6, 30–1, 48, 52, 54–7, 78–80, 139, 145–6 social defence/protection of society 17, 25, 28, 30–2, 36, 39–40, 47, 52–6, 66, 77, 89, 136, 141, 145 special prevention 22, 30 SSP (social work, school, police) collaboration 101–4, 113–14, 117 state racism 32, 36, 42–53, 75, 145, 149 Steincke, Karl Kristian 46–7, 52, 155n13 stigmatisation 35, 81–3, 112–13, 127, 165n7 Stürup, Georg K. 55, 59–68, 70, 72–5, 125, 130, 135, 145, 160n8

subjectification 14–17, 25, 30, 76, 112, 114, 146–7, 150; active and responsible individuals 18, 135, 141, 146–7; the criminal individual 29–30, 36 suspended sentences 35, 81, 85, 126, 155n7 Svalastoga, Kaare 163n23 Svendsen, B. Borup 67 Tarde, Gabriel 23, 27, 33, 46, 71, 162n21 Teubner, Gunther 89 terror 141, 149–50 Tofte, Finn 74 Torp, Carl 37–40 Törnquist, Karl-Erik 72 treatment 17–18, 26, 31, 34–42, 45, 49, 54–76, 101, 113, 115, 117, 120–8, 145–6, 148, 150; critique of 17–18, 71–8, 80, 120–1, 146, 150 tugthus (prison with hard labour) 21, 59 veridiction 6, 148–9 Vestergaard, Jørn 87–8, 127–8 victim, the 18, 26, 83, 88–92, 118, 151 victimology 89 Vridsløselille 22, 96, 131 Waaben, Knud 59, 155n13 Weber, Max 170n20 welfare state, critique of 77–9, 129, 137, 140, 146, 148–9 Wetzell, Richard F. 154n1 Wimmer, August 42–5, 48–9, 58, 69, 157n23 Wolf, Preben 71–3, 80, 95, 165n2 workhouse 40–1, 57 young offenders’ institution 41, 56, 75, 169n5 youth contracts 120–1, 126–8, 130, 140–1, 169n5 youth sanction 169n5