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Georg Rusche and Otto Kirchheimer: Punishment and Social Structure.


PUNISHMENT AND SOCIAL STRUCTURE WAS MAINLY THE CONCEPTION OF GEORG Rusche, one of its two authors. In order to shed some light on the quite knotted origins of this book, it is necessary to begin with a biographical account of Rusche, the less-known collaborator in the Frankfurt Institute of Social Research during the 1930s. (1)

Georg Rusche was bom in Hanover on November 17,1900, the son of a physician (also named Georg Rusche). In Hagen (Westphalia), Rusche spent his childhood and completed his early education. Subsequently, he studied law, philosophy, and social science abroad (in Paris and London), (2) and attended several German universities, including Munster, Gottingen, Cologne, and Frankfurt. Among his teachers were Leonard Nelson, Max Scheler, and Erwin von Beckerath. In 1924, he graduated from Cologne University with a degree in philosophy, having written his thesis on legal philosophy. (3) Again in 1929, he completed a course of study at the same university in economics and social science, with a thesis on the fundamentals of economic theory. (4)

At the same time, he had gained experiences in prison work and social work. It is highly probable that Rusche conceived of the very project of Punishment and Social Structure (hereinafter P&SS) during this period, in the course of rethinking these experiences and connecting them with the wide theoretical background he had previously acquired. (5)

In 1931, he submitted a research proposal concerning the relationships between punishment and the labor market for the consideration of the Frankfurt Institute of Social Research. (6) The initial fruits of Rusche's research were published in the Institute's journal in 1933, (7) wherein all of the theoretical milestones of P&SS were articulated in an essay that may well be considered a programmatic writing.

But in this very period, Hitler seized power in Germany. The Institute was obliged to close down and set out on that twisted pilgrimage that ended some years later at Columbia University in New York. (8) The various members of the Institute were forced to migrate, and some embarked for the United States at once. Others took refuge in European countries such as Great Britain and France. Although between 1937 and 1938 most of these joined the others in New York, Rusche was not among them. He experienced years of difficult exile as he was driven first from Paris to London, then to Palestine, and finally back to London. (9)

While in London, Rusche led a tenuous existence; his efforts to obtain financial help came to naught in the harsh economic conditions of the war. He received no assistance for his pressing needs from the New York Institute either, with the exception of some letters of recommendation from Max Horkheimer. (10) In his correspondence with Horkheimer, Rusche writes of his intention to continue his research, the investigation of Nazi criminal policy and, more broadly, the relationships between German monopoly capital and dictatorship.

Rusche left Palestine and when the war broke out in 1939, he was interned in a camp in Great Britain (probably due to his German citizenship), where he was compelled to stay until the beginning of 1941, as we discover from his letter to Horkheimer cited above. As he was being transported to Canada, the ship on which he was traveling was torpedoed and he was consequently brought back to Great Britain. He remained there until at least March 15,1941 (the date on the last of his letters, six weeks after his release from the internment camp). In the torpedoing, he lost all of his belongings, but it was the loss of a manuscript, a sort of personal and intellectual autobiography, that he regretted the most. At this point the information I have obtained on Rusche's life comes to an abrupt halt. (11)

Before going to Palestine, he had completed the manuscript of P&SS. However, the New York Institute decided that it must be reworked and expanded to cover the contemporary situation. Another of the Institute's members, Otto Kirchheimer, was charged with that task. Kirchheimer, who was both legally and criminologically trained, (12) widened Rusche's analysis to encompass the Nazi and fascist period, reworked the whole original manuscript and translated it, with the help of M.I. Finkelstein, (13) in 1937-1938. That is why, as Horkheimer states in his preface to P&SS, chapters II to VIII reflect mainly Rusche's original outlines, while the introduction and chapters IX to XIII are Kirchheimer's original addition. As we shall see, this "double writing" of the text generated a number of problems, for Rusche did not seem enthusiastic about the work of his coauthor, with whom he had probably not even discussed the contents of the book. (14)

P&SS is the first book of "the new American series" of the Institute, as Horkheimer states, and is also the first Institute publication to appear in the English language. After a long while in which the work had been virtually ignored, its popularity began to spread during the mid-1960s, aided by publication of the new American edition and then of the German translation. (15)


On the specific theme of prisons, P&SS proceeds along the main lines of development of the bourgeois age, looking at them from the standpoint of the Frankfurt School. Notwithstanding some schematism and an attachment to some positions inside "the School" over others, the book consistently shows the characteristic features of the social research worked out from that standpoint.

When Max Horkheimer was appointed director of the Institute in 1931, the aims of future research came to center on a thorough critique of the social phenomena specific to the bourgeois age. (16) This was to culminate in "a theory of the historical course of the present age." (17) Horkheimer's program embodied an obligation to pursue the kind of social research that would reinstate Marx's holistic view by spreading the analytic capability of Marxism over the whole array of social facts. According to Alfred Schmidt, this method was intended to fulfi 11 a twofold purpose. On the one hand, it provided a means to overcome the antipositivist reaction of those neo-Kantian tendencies that hypostatized a "world of values" proper to the sociohistorical sciences. On the other, it attempted to counteract the prevalent tendency to reduce Marxist research to a series of laws of social evolution, which resulted from the dogmatic, Stalinist reading of Marxism during the period of the Third International. (18)

Within this context, it was the transition from competitive to planned capitalism (or monopoly capitalism) that first came to be focused upon, and that increasingly came to constitute the fundamental theoretical object of the "School." Even though the School did produce economic studies, (19) the primary object of inquiry became the changes induced in the bourgeois cultural world within this overall process. The research conducted in Frankfurt centered upon the manifestation, management, and rationalization of the crisis of culture during this transition, examples of which are the studies on the family and the authoritarian personality. (20) The means by which the empirical findings resulting from these studies were to be interpreted resided in the spheres of history and political economy. (21)

The research carried out by Rusche and Kirchheimer on the topic of prisons must be located within the context of this overall project. As Rusche writes in his programmatic article of 1933:
   There can be no doubt that modern criminology, partly encouraged by
   psychoanalysis, has provided us with valid knowledge especially of
   the individual and social origins of crime and of the
   socio-psychological functions of punishment. This research,
   nevertheless, lacks the basis of all real social knowledge. It does
   not stand in relation to economic theory, and hence, is not rooted
   in the material base of society. Moreover, it dismisses any kind of
   historical foundations. This means that it implies an invariability
   in the social structure that does not exist in reality and that,
   lacking an awareness of this, it absolutizes the observer's present
   social conditions. In such a way, an inquiry into social change and
   into the historical effects of it are precluded. Whereas if we make
   use of a few simple economic concepts and do not assume a static
   situation in class relationships, but rather root our research in
   their long-run transformations, it becomes possible to push our
   inquiry into the social function of crime and punishment far beyond
   the point it has reached to date. (22)

The main object of their work is the specific form that punishment assumes during the bourgeois epoch: imprisonment. The central category they employ in addressing the history of detention within this epoch is the principle of less eligibility (23) Briefly, this principle functions in relation to the state of the labor market. It posits that the standard of living within prisons (as well as for those dependent upon the welfare apparatus) must be lower than that of the lowest stratum of the working class, so that, given the alternative, people will opt to work under these conditions and punishment will serve as a deterrent.

The emergence of the prison is then outlined from its roots in mercantilism to its elaboration and eventual generalization during the Enlightenment. In light of this fundamental structure of Rusche and Kirchheimer's work, it is critical to address the following question that it raises. The use of the category "labor market" can account for the introduction of imprisonment at a specific historical moment, and can account for the changes within this mode of punishment, but it does not completely account for the adoption of imprisonment per se by the new society arising from the ruins of feudalism. A firmer grasp on the reason for the adoption of this penal innovation, I would argue, is provided by the category of discipline, which speaks to the specificity of bourgeois punishment. The concept and practice of discipline came to be the essence of capitalist work management as it took shape in this period. The spread of discipline out of the factory represented at the same time the spreading of capitalist management over the entirety of bourgeois social relationships, or, likewise, the making of a bourgeois human type by means of the reproductive mechanisms of labor power. (24) The actual creation of the prison, then, as the punishment particularly fitting the period of "classic" capitalism, finds its origins and life in the process of transition from absolutism and mercantilism to liberalism.

It is noteworthy that this approach to the question was not at all unfamiliar to the "School," as is indicated in the work done there in those years. The strong influence of Freudian and Weberian thought in particular led their inquiry toward the analysis of the links between the making of a bourgeois social order and that of a bourgeois culture. This becomes clear when we take into consideration some historical essays such as Herbert Marcuse's contribution to the Studien uber Autoritat undFamilie and Max Horkheimer's article, "Egoismus und Freiheitsbewegung, " in the Zeitschrift fur Sozialforschung (1936). It is to these works' credit that they were able to link the bourgeois concept of discipline (and what this means culturally) with the changes in the capitalist management of work. This much, as a matter of fact, cannot be said of Michel Foucault's latest book, Surveiller et Punir. (25) Here this link is turned upside down, and the concept of discipline (descended from the "Heaven of Ideas"?) seems to be applied to the capitalist management of work to the same degree as it is to prisons, schools, army barracks, and so on, in short, to the various institutions the bourgeoisie has been creating since the period of its origins. The connections between these institutions, under the overarching category of discipline, are certainly real, but the point is that this very category is itself produced within the context of the bourgeoisie's need to organize and manage the work process in a capitalist way. (26)

The lack of determination in the category of discipline seems to be the root of a certain broad vagueness in Foucault's concept of Panoptisme, which is characterized as the modern form of social control. This concept has been effectively criticized by Massimo Cacciari, who notes that Foucault has hypostatized Bentham's utopia, Panopticon, into a universal metaphor, to express power in the bourgeois epoch. (27) This results in two relevant consequences: first, the theoretical ground upon which real power rests, class struggle, is shaken; second, the articulation of Bentham's utopia among the various institutions and along its historical course becomes very difficult, because its very roots--a determined capitalist organization of production--have been swept away. This last point takes on critical importance when we approach the conditions of contemporary capitalism. (28)

The rise of a bourgeois concept of time, as the abstract and general measure of the value of commodities, made possible the formalization of a practice that bourgeois society had already been engaged in for two centuries, but that only became finely honed during the Enlightenment: the establishment of the principle that the punishment meted out should be proportional to the given crime. What the crude Amsterdam merchants had discovered so much earlier in the process of their practice was the principle that Marquis Cesare Beccaria would transmit to history and literature.

A Soviet author, E.B. Pashukanis, had recognized this fact in a much more precise way than finds expression in P&SS. Rusche and Kirchheimer, it seems, did not use and probably did not know of Pashukanis's work, which would have enriched their own analysis. Pashukanis's major work, The General Theory of Law and Marxism, (29) was published in 1924 in Russian and translated into German some years later. Georg Rusche could thus have known of it, but Pashukanis's name (or for that matter the names of other contemporary Soviet Marxist writers) is never cited. When we compare Rusche and Kirchheimer's analysis of the Enlightenment period and of the emergence of the relationship of crime to punishment with that of Pashukanis, it is clear that the latter deepens and strongly underpins the investigation of this critical period of bourgeois penal history:
   Deprivation of freedom for a definite period indicated in advance
   in the sentence of the court is the specific form in which
   modern--that is to say, the bourgeois-capitalist--criminal law
   effectuates the principle of equivalent requital. This method is
   closely (though unconsciously) associated with the idea of the
   abstract man and abstract human labor measured in terms of time....
   A condition precedent to the appearance of the idea that accounts
   in respect of crime could be settled by a predetermined quantum of
   abstract freedom was the reduction of all the concrete forms of
   social wealth to the simplest and most abstract form of human toil
   measured in terms of time.... Industrial capitalism, the
   declaration of rights of man and citizen, the political economy of
   Ricardo, and the system of terms of confinement in prison are
   phenomena of one and the same historical epoch. (30)

This concept is essentially expressed in the twenty-second paragraph of Beccaria's Dei delitti e delle pene, which was dedicated to the discussion of theft. The central role of value in the determination of the principle of proportionality between crime and punishment was already stressed in the writings of Hegel and also in those of the young, still Hegelian, Marx. (31) It is not surprising that even the brightest bourgeois theorists could not understand the essence of Pashukanis's argument. Thus, in his The Communist Theory of Law, (32) Hans Kelsen asserts that Pashukanis's theory is an "absurd view" and a plain repetition of Aristotle. On the contrary, the remark by Pashukanis that receives the greatest emphasis addresses how the general principle of equivalent requital (historically stated by Aristotle among others) operates under the specific conditions of capitalist rule. But of course this is precisely what Kelsen cannot comprehend, anxious as he is to defend the entirety of bourgeois legal ideology. (33) As a matter of fact, Kelsen's criticism is a good example of fetishized thought in the realm of the criminal law, because he assumes as natural a given relationship between crime and punishment in terms of time, which prior to the capitalist mode of production would have appeared profoundly absurd and unfeasible. This way of thinking projects the features of a definite epoch upon the entirety of the historical process, ignoring the huge leap and the deep changes that the bodies and minds of men underwent due to the sway of capitalist rule.

Within this overall framework, we can perhaps better understand the critics of P&SS who argue that the book is affected by economism. (34) If this work is marked by some limitations, they certainly reside in the realm of political and ideological matters. P&SS does not claim to be historically "complete." It does attempt, however, to draw out the main lines of the relationship between punishment (during the bourgeois age) and the social structure (determined on the basis of economy and history, as Rusche states in the above-cited article). Any claim to completeness thus is rejected, both vis-a-vis the historical research and its object, i.e., not the prison in general, but rather the relationship between punishment and social structure. The object of the research is not, in fact, penal and legal theory, or even an inquiry into the inner ideological aspects of the prison as an institution, as an "asylum." Is then, the specificity of the prison not grasped due to the very determination of the object--the relationship between penal processes on the one hand, and history and economy on the other? I do not believe so. Rather, the question lies in the way we address the issue of this relationship, a way that must also enable us to account for ideological facts.

We return, then, to the problem I have already emphasized: namely, the category of the labor market. This critical category utilized by Rusche manages to reduce that very complex phenomenon that constitutes the making of a bourgeois mankind by means of those social institutions that are ancillary to the factory. Economism is not implied, then, in the linking of penal issues with historical, economic, and social facts, as Rusche's original program aimed to do. (35) Rather, it is in the elaboration of the program's contents that the reduction of an extremely complex relationship takes place by making it a mere function of the state of the labor market. Thus, even though the concept is useful, it is not fully sufficient.

All of this becomes quite clear whenever P&SS deals with the relationship between the general ideology characterizing an epoch, and the specific penal ideologies that correspond to it. For example, the transition from the religious concept of the Middle Ages to that of Protestantism and the changes effected in charity practices; the continuing relevance during the Middle Ages of the criminal canonical law of the Church; the deep connection between the practice of confinement during the rise of capitalism and its theoretical rationalization in the thought of the Enlightenment; the stubborn persistence of the prison institution after the creation of the surplus population by the Industrial Revolution had rendered it useless, at least by strictly productive criteria; these and other critical historical points pertain much more to the inner structure of the prison institution, as a section of a broader bourgeois "program," than to changes in the labor market. The changes in the labor market may account for the surface phenomenology of our question, but it does not penetrate to the core of the matter.

Nevertheless, the conclusion must not be drawn that these two concepts are contradictory. Historically, they have always been integrated, and we must deal with them as such. The labor market has been crucial in the determination of class power, at least up to the appearance of those modern capitalist policies that affect the labor market. The proletariat's capacity to resist has always been in direct ratio to its strength in the labor market. This resistance has essentially been resistance against capitalist management, against the discipline imposed by capitalist authority. It becomes clear, then, that the category of labor market has been able to define that of discipline historically. Put another way, in that discipline has historically been linked with the evolution of capitalist management, it is also a function of that class struggle that is at the root of productive changes, wherein the situation of the labor market plays a very important role indeed.

The first conclusion we draw is that where there is shown to be "economism" in P&SS, it is not produced by a lack of consideration for ideological issues that--as a bourgeois, critic might maintain--should be eclectically juxtaposed to the economic driving forces. This "economism" is produced, however, by flaws in the analysis of the structural roots of our object, which emanate from the incomplete inscription of punishment into the scientific categories of Marxism. The concept of labor market once again fails to give us a full accounting for the invention of the prison and its structure, whereas it is really effective in keeping track of the history of imprisonment, once the concept of punishment through detention is taken for granted. The production of a new mankind--the reproduction of that specific part of the capitalist mode of production constituted by variable capital--that is at the core of the invention of the prison (but that is certainly not limited to it), is obscured in the analysis provided by Rusche and Kirchheimer.


These issues become even more apparent with respect to the last section of the book, from the ninth chapter onward, in the section written by Kirchheimer. Chapters II to VIII, indeed, carefully follow the course of Rusche's fundamental hypothesis, a fact that is linked not only to the obvious fidelity of the author to his own hypothesis, but also to more substantial reasons. Rusche's main outline of the relationship between the prison and the state of the labor market is conceived and elaborated within the historical period I have already pointed to, that is, up to the onset of modern capitalism. During the second half of the nineteenth century, however, enormous changes took place within the capitalist social and economic structure. The making of a working-class movement, the intervention of the state in labor matters, as well as the first manifestations of monopoly capital, all deeply affected the traditional features of capitalism, including, last but not least, the automatism of the labor market.

As I will make clear in the next section, the effort to develop Rusche's main hypothesis further required that Kirchheimer confront this overall problematic. He does this, quite poorly indeed, in the ninth chapter of the book. In that chapter he links the success of the penal reform movement in the period spanning 1880-1930, the decrease in the rate of imprisonment, and the improved conditions within prisons with the rising role and power of the working class, at least with regard to the most developed capitalist countries. But here his analysis stops, and he turns instead to the investigation of the political and institutional outlines of the penal question inside the totalitarian states of the 1930s. (36)

This different object of inquiry upon which Kirchheimer focuses his attention brings the "economism" of the whole work to the fore to an even greater degree. While Rusche's concept itself has the effect of partially obscuring the entirety of the linkage between the productive sphere and punishment, this limitation becomes even more apparent in the last section of the book, where the category of labor market hardly operates. And it is precisely that section wherein the inquiry becomes highly problematic. (37) Kirchheimer's interest certainly centers upon the new, sweeping change that marks the transition from competitive to monopoly capitalism, but it is viewed and operationalized in a completely different way and taken in a different direction than the way in which Rusche had proceeded.

Within the "School's" framework, Kirchheimer devoted himself to the study of the crisis in the Weimar Republic and of the rise to power of the Nazi Party. (38) In so doing, he found himself closer to other Frankfurt personalities who shared with him some kind of legal training, such as Franz Neumann, than to the leading members such as Max Horkheimer and Theodor Adorno. In his valuable work, Martin Jay shows how these differences were not at all casual, but rather were rooted in the different approaches to the analysis of totalitarian regimes, as the polemics surrounding Neumann's book, Behemoth, make clear. (39)

Upon arriving in New York after three years of exile in Paris, Kirchheimer reworked Rusche's manuscript and wrote other essays on the evolution of the German legal system, and particularly on the criminal justice system after Hitler's seizure of power. (40) The main concepts in his analysis, however, are already expressed in his lucid 1930 essay on the Weimar constitution, a constitution that he defines as ohne Entscheidung (without decision). (41) A Marxist militant inside the German Social Democratic Party and, at the same time, a disciple of Carl Schmitt, Kirchheimer views the ruin of Weimar as marked from the beginning by its inability to cope with the need to be decisive and to command the "emergency situation," in durftiger Zeit. The result of a compromise between the old liberal principles and the social demands of the defeated postwar German revolution, the Weimar constitution is impotent vis-a-vis the effects of the rise of monopoly capitalism, which wiped out the base of conventional liberal democracy in its wake. Moreover, the "social" section of the constitution is nullified by the defeat of those left forces that had backed it. Manifestly, what Kirchheimer means here by Entscheidung, decision, is the capability to build an institutional framework that could conclusively overcome the old liberal one, exercise its command over monopoly capital, and, hence, drive the whole social structure toward a socialist end.

After the defeat of the working-class movement that, since the Germany of Emperor Wilhelm II, had been the only actual pillar, the real core of bourgeois democracy (42) and after the consolidation of the monopoly structure, the breakdown of liberalism represents at the same time the demise of the main principles of bourgeois legal and penal ideology. Kirchheimer examines this process both in his section of P&SS and in the two articles written for the "School's" journal. In them, he links the legal "decisionism," a hallmark of the age of advanced capitalism, with the rise of those legal theories that will form the theoretical background of the Nazi criminal law. The parceling of general and abstract law into a multiplicity of administrative rules parallels the transition from a classic liberal economy, where many productive units are unable to affect the market, and where power is more equally and anonymously disseminated (at least, as maintained by liberal theory) to a society and market where power is firmly held by a few political-economic centers. (43) The law, then, has been transformed into a set of administrative rules and no longer aims at a generality of subjects, but at the specificity of an individual one. Kirchheimer depicted the "irrationalism" of penal theories between the 1920s and 1930s simply as a trend within law to develop in accordance with the real inequality of the governed. It is the acknowledgement of this inequality that calls forth a new legal method rooted in the intuition of the individual case. It is not the equal application of the law of the great French Revolution, but rather the command of monopoly capital (or of state capitalism) that forms the basis for the authoritarian criminal law, developed in accordance with the intuitionism of Kiel's phenomenological school as the definitive end of the Nazi criminal law when it abandoned the earlier volitional doctrines. (44)

Although intuitionism is the ideology, Kirchheimer clearly shows that this does not at all mean the "liberty of the judiciary," even though, as Baratta writes, (45) this constituted one of the main tools with which the fundamental principles of legal positivism had been gradually destroyed during the Weimar period. Intuitionism is merely the ideological concept that allows political and economic power to bring the legal system into its fold. The judge's intuition is not "freely" conceived by the judge himself, but is derived from administrative orders, via the concepts of Volksgeist (people's spirit) and of the Fuhrerprinzip (leadership principle): from the top of the increasingly intertwining state and Nazi Party. (46)

This process, writes Kirchheimer, unfolds through a number of different steps. First, he describes an extreme verticalization of the judiciary, made possible by the increased power of the Oberreichsanwalt (47) and the open intervention of political and administrative agencies into the competence of the courts. (48) Furthermore, this process is realized through the increasing delimitation of the legal competence of the judiciary, together with the administrativization and departmentalization of criminal justice: The National Socialist Party, the Gestapo (secret political police), special administrative units such as the SS (Schutzstaffel), the army, the compulsory Labor Service, and the special court on political crimes, each is furnished with an exclusive penal competence of its own, relating to matters, to the subjects, or simply relying on the practice followed. (49)

What is developing, then, is a process that Kirchheimer defines as rationalization (Rationalisierung, scientific management) of the criminal law:
   Rationality here does not mean that there are universally
   applicable rules the consequences of which could be calculated by
   those whom they affect. Rationality here means only that the whole
   apparatus of law and law-enforcing is made exclusively serviceable
   to those who rule. Since no general notions prevail which could be
   referred to by the ruling and the ruled alike and which thus might
   restrict the arbitrariness of the administrative practice, the
   rules are being used to serve the specific purpose of those ruling.
   The legal system that results is rational for them only. This,
   then, is a strictly Technical Rationality which has as its main and
   uppermost concern the question: How can a given command be executed
   so as to have the maximum effect in the shortest possible time?

After this passage, Kirchheimer quotes from a speech by a writer on criminal law, Hans Frank, Reich Minister and president of the Academy of German Law and Governor General of Poland. In this speech, Frank, having compared the smooth running of the state administration to the functioning of a good machine, proceeds to demand the introduction of Taylorism "into the realm of statecraft in order to get the most precise answer to the question as to how the will of the political leadership can be put into practical effect as speedily as possible." (51) Jay notes in this regard that the analysis of National Socialist law is connected with a leitmotiv of the Frankfurt School, the struggle against the Weberian principle of technological rationality as opposed to rationalism (and this includes legal rationalism). In those very years, Horkheimer wrote: "Fascists have learned something from pragmatism. Even their sentences no longer have meaning, only a purpose." (52)

In this way, the inquiry into the crisis of the Weimar constitution and its resolution into the National Socialist "new order," which Kirchheimer had begun nine years earlier, came to an end. Weimar's indecision had reaped the destruction of democracy and resulted in the rise of a new command center unifying monopoly capital and the Nazi state. The last chapters of P&SS, written during the first, hard years of exile just prior to World War II, are inscribed within this scope. Beyond this scope, then, is the investigation into punishment within our contemporary social structure.


Punishment and Social Structure has been completely ignored for many years, surprising enough considering its unquestionable value, but further with regard to the currency of other criminological "classics" that are far less deserving. It may not be so surprising, however, if we take a closer look at the state of criminological studies and at the degree to which this "science," in its very roots, has been a tool of power. In fact, it is not by chance that P&SS has come to be focused upon in the last few years. Its rediscovery must be understood in terms of the critical positions arising within the criminological scope in the attempt to elaborate a Marxist analysis of criminal and penal social facts.

Today, a discussion of P&SS cannot fail to address the question of its capacity to account for contemporary events. Or, as Rusche liked to put it in 1933, we should face the question of whether it is necessary to abandon "that simple heuristic maxim that resulted in so many correct research findings" (53) when analyzing the contemporary age. This, as we have already seen, is precisely the question not answered in the final chapters of the book written by Kirchheimer. The question, in my opinion, could be expressed again in the following terms: do the long-term changes that have been appearing in some of the main features of punishment correspond to a different state of the labor market in contemporary capitalist society (as an extension of Rusche's hypothesis would lead us to believe), or do they correspond to deeper social transformations, and, as such, call into question the relationship of punishment and social structure as it was defined within the origins of the capitalist mode of production?

In a recent article, Ivan Jankovic grapples with this question in the only serious attempt to discuss the central hypothesis in P&SS, (54) This article deals with the trend of punishment in the United States from 1926 to the early 1970s. One result of his study is a critique of Rusche and Kirchheimer's assumption of a steady decline in the use of imprisonment as a means of punishment within advanced capitalism and, above all, of their hypothesis that fines would increasingly come to be the new, typical punishment. Jankovic grounds his critique in the fact that imprisonment and probation constitute the most frequent sentences for criminal conviction in the United States today. I would like to stress the point, however, that Rusche and Kirchheimer do not take a definitive position on the trends concerning the penal system contemporary to them, with the exception of Kirchheimer's arguments regarding fascist countries. They acknowledge the decline in the prison population in the most developed European countries (55) coupled with a rising use of fines. They connect these facts with the improved economic conditions of the lower classes between the end of the nineteenth century and the years of World War I. Since Jankovic accepts these facts unquestioningly, his criticism can merely indicate that after 1926, matters in the United States differed slightly.

It is important to reassert that Rusche and Kirchheimer do not put forward a theory that attempts to explain the twentieth century, at least not to the same degree that they do for the previous period. This lack of a consistent theory on their part--or, more precisely, of a clear and actual extension of their theory to cover the twentieth century--must be attributed to the scope of Rusche's original program, which spanned the period from the breakdown of feudalism to laissez-faire capitalism. (56) The quite simple and mechanistic relationships between the state of the labor market and the use (or nonuse) of coerced labor outlined in Rusche's hypothesis can hardly be applied to the era of monopoly capitalism and the Keynesian state, when among other things, the rise of a strong unionism challenged the "automatism" of the labor market, which has been one of the targets of the workers' movement. (57) Alternatively, the difficulty does not lie, as Jankovic seems to think, in Rusche and Kirchheimer's linking of imprisonment with the profitability of coerced labor (58) because the connection is only referred to in P&SS with regard to a particular stage of capitalism, which is governed by a scarcity of labor power. (59)

In my opinion, Jankovic's hypothesis is not antagonistic to that of Rusche and Kirchheimer, but complements it in terms of space and time. Connection and covariance (to the degree that this relationship can be expressed mathematically) (60) between imprisonment and unemployment rates tell us neither anything new in particular vis-a-vis the main question at issue, nor anything strictly specific to the conditions of advanced capitalism. Why wouldn't this connection and covariance be just as true with respect to capitalist societies other than the United States in the twentieth century? Rusche and Kirchheimer's main hypothesis may also be true within a rigid connection between the rate of unemployment and the rate of imprisonment, because it is essentially qualitative, not quantitative. It aims to account for the nature and character of punishment, not for its magnitude.

For instance, when Rusche addresses the problem of the origin of prisons in Holland and northern Germany of the early seventeenth century, the root of the social question he tries to grasp is certainly not the occurrence of mass unemployment, because during the long crisis of the feudal mode of production, the unemployment problem had been dealt with in a completely different way, by means of the widespread practice of corporal and capital punishments. Only with the change in the state of the labor market (and when the rise of a new mode of production had matured) did those very few for whom the houses of correction were to be built begin to be viewed as particularly valuable human capital. Once again, the question of the origin of the prison as such is basically different from that of the relationship between imprisonment and unemployment rates.

This is also true when we take a closer look at another critical point in P&SS, the Industrial Revolution, and the making of a huge industrial reserve army, which gradually formed in the various capitalist countries. (61) Rusche does not argue that punishment once again becomes "irrational" in these conditions, which no longer allow for the exploitability of coerced labor. All in all, Rusche takes the same positions as those stated by Jankovic as an attempt to "develop" him. (62) Rusche holds that within the changed conditions of the labor market, any form of productive work within prisons is useless and unfeasible, whereas the deterrence principle tends to come to the fore once again. (63) By then, the control over the working class by the prison institution is compelled to take new shapes. But neither Rusche nor Jankovic tells us why this "control" should keep working within the essential structure of imprisonment (and its related legal superstructure). Rusche realized this question and tried to push a few vague and unconvincing "cultural" motives, which are supposed to account for the reason why a penal system of the medieval kind was not reinstated at that point. (64) What we find wanting once again, then, is an analysis of the function of reproduction of labor power that is fulfilled by the institution, a function strictly tying the prison to the form (or figure) of the factory, and to discipline as the capitalist management of labor. Lacking this, Rusche cannot acknowledge that the firm hegemony already achieved by capitalist social relationships in early nineteenth-century Europe calls forth the extension of imprisonment as one element within the overall extension of those relationships.

Moving from this standpoint, we can address our question, the fate of imprisonment in advanced capitalism. The history of prisons thus appears to be a particular chapter of a more general history, that of the making and the reproduction of the working class. But these concepts are in no way defined once and forever within the capitalist mode of production. They are governed by these productive relationships as they have been shaped under the cudgel of class struggle. (65) Insofar as we can locate prisons within this history, the better can we comprehend the tendencies and rationales of that institution's specific history. The changing of these capitalist production relationships in the course of the twentieth century, in fact, challenges the very basis of imprisonment. This manifests itself in the long run as a decline in the use of imprisonment and as a concomitant rise of new means of control, whether or not these are linked with a legal/social labeling of delinquent and/or criminal activity. Within this process, those functions originally fulfilled by the prison come to be performed by other social institutions in a better and wider way. At the same time, the changes in that social model upon which the prison had been shaped, mainly the capitalist management of labor, make the institution, in its deep structural core, both obsolete and incapable of fitting its primitive functions.

In my opinion, this is the main reason for the decline in the use of imprisonment to which Rusche and Kirchheimer point in many European countries between the second half of the nineteenth century and the first half of the twentieth century. (66) A decline in the daily average prison population takes place regardless of whether it stems from the introduction of parole, probation, suspended sentences, or other changes in sentencing criteria, etc. (67) When I emphasize the wider forces leading to the obsolescence of the prison institution, I do not mean to imply that Jankovic's main hypothesis is incorrect, because one of the striking features of capitalism in the long run has been the change from an enormous industrial reserve army--that arose in the initial period of industrial "take off' at different times in different countries--to a situation of "full employment" (as bourgeois economists define a more contained and steady unemployment rate). This latter situation has characterized capitalism from the period of the Great Depression of the 1930s up to the present crisis. (68) An attempt to grasp the more meaningful structural reasons for the crisis in the prison institution is not antagonistic, then, to a theory that shows a correspondence between the rate of imprisonment and the rate of unemployment.

Jankovic points to the emergence within advanced capitalism (particularly in the United States) of a kind of control that does not imply the imprisonment of those convicted, i.e., probation. This kind of sanction presents a real alternative to the use of prison or pecuniary punishments that Kirchheimer envisioned. (69) Jankovic's observation does not contradict the effort to articulate a theory of "structural crisis" of the institution; on the contrary, it fits such a theory very well, because this new kind of sanction seems to express that obsolescence of the prison system, which has been induced by capitalist development, within the very penal system of social control. (70) From the standpoint of this discussion and of the analysis to which I have referred, in the long run the same forces seem both to challenge the justification for the existence of prisons and simultaneously to call forth the creation of new penal tools that mesh more smoothly with the present stage of social relationships.

In conclusion, these seem to be the main issues upon which the discussion of P&SS must be focused. Further, our research must center on these issues not only to essay the validity of Rusche's hypothesis, but also to shed light on the relationship between punishment and social structure as it appears within the post-World War II capitalist mode of production. We are dealing here with research that goes far beyond the limits of the criminal question. As Rusche and Kirchheimer were able to show us, punishment comes to be the kernel in a set of complex relationships dealing with a few central concepts of contemporary capitalism: the management of labor and its corresponding ideology, the state of the labor market, and social control processes in the widest sense.

It is not by chance that the general themes in P&SS came again to the fore within the context of the crisis in capitalism that began during the 1960s. This circumstance has provided us with the rediscovery of a classic and important work that the professional textbooks, both legal and criminological, preferred to ignore. Now that these textbooks, the exegetes and guarantors of a bygone stability, may definitely be shelved for good, we possess a work that we can make use of to build the new. Within the crisis, this is precisely what we need.


(1.) I could not find anything published about Georg Rusche's life and works. What follows in this section is the result of my own research. (I would like to thank the following people for their invaluable help: Martin Jay, at the University of California, Berkeley, and Helmut Dubiel. at the University of Miinchen, who gave me access to the "Pollock-Archiv" in Frankfurt.) The life and works of Otto Kirchheimer are widely known; see John H. Herz and Erich Hula, "Otto Kirchheimer: An Introduction to His Life and Work," in Otto Kirchheimer, Politics, Law and Social Change, New York and London: Columbia University Press (1969): ix-xxix.

(2.) See the letter from Georg Rusche (London) to Max Horkheimer (New York), March 15, 1941 ("Pollock-Archiv," Frankfurt). Much of the information used in the first section is taken from this letter.

(3.) This thesis, Bemerkungen zum Rechtsbegriff und zu den Grundsatzen der philosophischen Rechtslehre, is a discussion of Jacob Friedrich Fries's legal philosophy (typed).

(4.) The title of this thesis, supervised by Erwin V. Beckerath, is Bemerkungen zur logischen Grundlage der theoretischen Okonomik, Eine Untersuchung der Wirtschaftswissenschaft. Leipzig: Thalacker and Schoeffer (1929).

(5.) He wrote about these matters for a daily Frankfurt newspaper, the Frankfurter Zeitung, which was taken over by Hitler in the late 1930s. See an article by him entitled "Zuchthausrevolten oder Sozialpolitik" (June 1, 1930).

(6.) See the preface by M. Horkheimer in G. Rusche and O. Kirchheimer, Punishment and Social Structure. New York: Russell and Russell (1967): ix-x.

(7.) Georg Rusche, "Arbeitsmarkt und Strafvollzug." In the Zeitschrift fur Sozialforschung II (1933): 63-78.

(8.) On the history of the Frankfurt School, see first and foremost Martin Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research. Boston/Toronto: Little, Brown and Company (1973).

(9.) See Rusche's letter to Horkheimer, cited in note 2.

(10.) See, for instance, Horkheimer's letter of June 28, 1939, in the "Pollock-Archiv" in Frankfurt.

(11.) See also his letters of April 5, June 14, and August 6, 1939, to Horkheimer and the Institute's reply, probably drafted by Pollock on April 10, 1941. These, too, are located in the "Pollock-Archiv." I could not find any books or articles published by Rusche after P&SS. Herbert Marcuse, Leo Lowenthal, Thorsten Sellin (who wrote the foreword to P&SS), M.I. Finley (who helped Otto Kirchheimer with the translation of the book into English), and Anne Kirchheimer, Otto's widow, have all kindly written or said to me that they never met Rusche and that they never got to know anything about him after Punishment and Social Structure was published.

(12.) During his first years of exile in Paris, Kirchheimer wrote "Remarques sur la statistique criminelle de la France d'apres-guerref in the Revue de Science Criminelle et de Droit penal compare I (1936): 363-96. On criminological matters, while in New York, he also wrote "Recent Trends in German Treatment of Juvenile Delinquency," Journal of Criminal Law and Criminology XXIX (1938), pp. 362-70, and two articles for the Institute's journal, discussed in section three of this article.

(13.) Regarding Finkelstein, who changed his name to Finley, see M. Jay: 284-85.

(14.) Herbert Marcuse, Thorsten Sellin, M.I. Finley, and Anne Kirchheimer agree in excluding the possibility that Rusche and Kirchheimer had ever worked together on Rusche's first manuscript and in maintaining that Kirchheimer reworked it alone when he got to New York. M.I. Finley states in a letter to me that the relations between Rusche and the New York Institute were badly strained, to the extent that people at the Institute considered the possibility of dropping Rusche's name from the book. In his letter to Horkheimer of June 14, 1939, Rusche wrote: "I am really sorry to be obliged to say that in Dr. Kirchheimer's work there is a series of flaws that should have not appeared in the book and that I strongly deplore" (my translation from German).

(15.) The old Columbia University Press edition (New York: Morningside Heights, 1939) was reprinted by Russell and Russell in 1967. The German translation appeared in 1974 (Sozialstruktur und Strafvollzug, Neuausgabe Cologne-EVA).

(16.) See A. Schmidt, Die "Zeitschrift fur Sozialforschung": Geschichte und gegenwdrtige Bedeutung. Miinchen (1970); M. Jay; F. Apergi, Marxismo e ricerca sociale nella Scuola di Francoforte (1932-1950), Firenze: La Nuova Italia (1977).

(17.) My translation from the German. See A. Schmidt, who gives an accurate discussion of the concept of "social research" from the Frankfurt School.

(18.) See A. Schmidt.

(19.) Above all, see the studies done by Friedrich Pollock. Apergi emphasizes the influence of Pollock's thesis on state capitalism upon the theory of the main figures of the "School," such as Horkheimer, Adorno, and Marcuse; see also M. Jay: 143ff.

(20.) See M. Horkheimer and others, Studien liber Autoritat undFamilie, Paris (1936); T.W. Adorno and others, The Authoritarian Personality, New York (1950). See also Adorno's and Horkheimer's many essays on mass culture.

(21.) Again, see A. Schmidt.

(22.) Georg Rusche, "Arbeitsmarkt und Strafvollzug" (cited in note 7): 64. My translation from the German.

(23.) The less eligibility principle was mainly formulated by the English social writers of the eighteenth century. This principle is, essentially, that "simple heuristic maxim" that Rusche designed to underpin his research in the main. See his "Arbeitsmarkt und Strafvollzug"'. 67. See also D. Melossi and M. Pavarini, Carcere e fabbrica, Bologna: II Mulino (1977),pp. 81-82, which was also translated into English.

(24.) These themes have been more broadly developed in D. Melossi, "Carcere e lavoro in Europa e in Italia nel periodo della formazione del modo di produzione capitalista," in D. Melossi and M. Pavarini, Carcere e fabbrica: 71-75, and in D. Melossi, "Istituzioni di controllo sociale e organizzazione capitalistica del lavoro: alcune ipotesi di ricerca," in La questione criminale 11(2-3) (1976): 293-302.

(25.) M. Foucault, Surveiller et Punir, Paris: Gallimard (1975). The English translation is entitled Discipline and Punishment, New York: Pantheon Books (1977).

(26.) In this sense, the story in Surveiller et Punir has already been told in the first volume of Capital, Part IV: "Production of Relative Surplus Value," New York: International Publishers (1977): 312-507. An interesting study of how Foucault's economie politique du corps has been developing within the political economy tout court (that is, within the factory, within the sphere of production) is Harry Braverman's Labor and Monopoly Capital, New York: Monthly Review Press (1974).

(27.) See Massimo Cacciari, Razionalita' ed ' irrazionalita' nella critica del politico in Deleuze e Foucault," Aut-Aut 16(1977): 119ff.

(28.) See J. Bentham, Panopticon, in The Works of Jeremy Bentham, IV, New York (1962): 37ff. (Marx, it should be added, described Bentham as "a genius in the way of bourgeois stupidity," in Capital, Vol. 1: 610.) On the utopian character of Bentham's project, even within the history of prison architecture, see Robin Evans, "Bentham's Panopticon: An Accident in the Social History of Architecture," Architectural Association Quarterly, III (1971): 21-37. Finally, see D. Melossi and M. Pavarini in Carcere e fabbrica: 67-76, 239ff.

(29.) In H.W. Babb, J.N. Hazard, eds., Soviet Legal Philosophy, Cambridge, MA (1951): 111-225.

(30.) E.B. Pashukanis, in Babb and Hazard: 218-19.

(31.) See D. Melossi, "The Penal Question in Capital." Crime and Social Justice 5 (SpringSummer, 1976), pp. 26-33, and D. Melossi and M. Pavarini, Carcere e fabbrica: 85-88.

(32.) Hans Kelsen, The Communist Theory of Law, New York: Praeger (1955): 98-103.

(33.) In this, he is followed by two latter-day Italian disciples: see L. Ferrajoli and D. Zolo, "Marxismo e questione criminale," La questione criminale III(l) (1977): 97ff.

(34.) See H. Steinert's paper entitled "On the Development of Penal Policy, Mainly a Critique of Rusche/Kirchheimer and Some of Their Background Assumptions" (presented at the fourth meeting of the European Group for the Study of Deviance and Social Control in Wien, September 1976). See also the doubts expressed by Guido Neppi Modona in his foreword to D. Melossi and M. Pavarini, Carcere efabbrica: 7-15.

(35.) It is clearly presented in his article "Arbeitsmarkt und Strafvollzug."

(36.) As I already noted, Rusche was unhappy with the way Kirchheimer reworked and completed the book. Perhaps this too was caused by the failure to extend the fundamental relationship between the labor market and punishment to the contemporary epoch. In his letters. Rusche often indicates an intention to continue working on the matter, even after publication of the book. See especially his letters to Horkheimer of April 5 and June 14, 1939, in which he writes of his desire to go on studying the development of German penal policy under Nazi control. He refers to the extreme scarcity of labor power (ungeheuerlichen Arbeiterverknappung) in prewar Germany as a "really interesting new fact" in connection with penal practices. See note 59 below for further information.

(37.) Generally speaking, regarding the difficulty encountered by Marxist analysis of the whole period after the Great Depression of 1929, and on the specific topic of prison history.

(38.) Otto Kirchheimer, born November 11, 1905, at Heilbronn, studied law and the social sciences at the following universities: Munster, Cologne, Berlin, and Bonn. His principal teachers were Max Scheler, Rudolf Smend, Herman Heller, and Carl Schmitt. Between the 1920s and 1930s, he was an active militant in the left wing of the German Social Democratic Party (SPD). (See J.H. Herz and E. Hula; and M. Jay: 148-49.)

(39.) See M. Jay's chapter on the Institute's analysis of the Nazi period. Whereas Neumann's major work, Behemoth (New York, 1944), centers its analysis of German fascism on the concept of monopoly capital, Pollock's works--critical to Horkheimer's and Adorno's theory--are focused upon state capitalism. See M. Jay: 161-67.

(40.) In this period, Kirchheimer wrote articles for the journal of the "School," such as "Criminal Law in National Socialist Germany," in Studies in Philosophy and Social Science VIII (1940), pp. 444-63, and "The Legal Order of National Socialism," Studies in Philosophy and Social Science IX (1941): 456-75.

(41.) See O. Kirchheimer, "Weimar: And What Then? An Analysis of a Constitution." In O. Kirchheimer, Politics, Law and Social Change: 33-74.

(42.) Rosa Luxemburg's political and theoretical activity is particularly meaningful on this point. See D. Melossi, "La concezione delta democrazia nel pensiero di Rosa Luxemburg." In Rosa Luxemburg e lo sviluppo del pensiero marxista, Milano: Mazzotta (1977): 333ff.

(43.) In this analysis, Kirchheimer is very close to Neumann. See, above all, F. Neumann, "The Change in the Function of Law in Modern Society," The Democratic and the Authoritarian State, New York (1957). It is probably not by chance that by then both of them were working with A.R.L. Gurland on research published under the title The Fate of Small Business in Nazi Germany, Washington, DC (1943), for a US Senate commission.

(44.) See O. Kirchheimer, "Criminal Law in National Socialist Germany": 445. A broad picture of the debate among the different schools of criminal law in Germany between the period of the Weimar Republic and the rise of National Socialism is given by Alessandro Baratta in Antinomie giuridiche e conflitti di coscienza, Milano: Giuffre (1963), and Positivismo giuridico e scienza del diritto penale, Milano: Giuffre (1966). On the Kiel school, see in particular Antinomie giuridiche ...: 38ff and Positivismo giuridico ...: 23ff. The critique of phenomenological legal schools is tightly linked in the writings of the Frankfurt School with the critique of phenomenological theory tout court. See, for instance, H. Marcuse, "The Struggle against Liberalism in the Totalitarian View of the State" and "The Concept of Essence" in Negations, Boston: Beacon Press (1969): 3-87.

(45.) See A. Baratta, Antinomie giuridiche...: 60ff and Positivismo giuridico ...: 50ff.

(46.) See O. Kirchheimer, "Criminal Law in National Socialist Germany": 446,448ff.

(47.) Ibid., 461.

(48.) Ibid., 451.

(49.) Ibid., 452ff.

(50.) O. Kirchheimer, "The Legal Order of National Socialism." In O. Kirchheimer, Politics, Law and Social Change: 99.

(51.) Ibid., 99, 100.

(52.) Max Horkheimer, "Preface," Studies in Philosophy and Social Science IX(2) (1941): 198ff. On the broad and problematic themes underneath these questions, see M. Cacciari, Krisis, Milano: Feltrinelli (1977).

(53.) G. Rusche, "Arbeitsmarkt und Strafvollzug": 76 (my translation from German).

(54.) See I. Jankovic, "Labor Market and Imprisonment," Crime and Social Justice 8 (Fall-Winter, 1977): 17-31.

(55.) See G. Rusche and O. Kirchheimer: 138-65. The countries where Rusche and Kirchheimer find a decline in the use of imprisonment are Great Britain, Germany, and France.

(56.) Complete is the correspondence within this historical period, the one covered by Rusche's "program" in "Arbeitsmarkt und Strafvollzug" and in chapters II to VIII of Punishment and Social Structure, which Horkheimer attributes to Rusche in his preface to the book.

(57.) As a matter of fact, the struggle to abolish prison labor came to constitute a constant aim of the working-class movement from its origins. This was particularly true of the United States in the nineteenth century, where the exploitation of prison labor developed more than in any other country. See M. Pavarini, L'invenzione penitenziaria: I'esperienza degli Stati Uniti d'America nella prima meta del xix secolo. In D. Melossi and M. Pavarini, Carcere efabbrica: 189-99.

(58.) See I. Jankovic: 18-19. Recent historical cases, such as Nazi Germany, have widely shown that there is no necessary conflict between capitalism and the use of coerced labor. It is a political problem, having to do with the power relationships between the classes. Robert Evans's article "Some Notes on Coerced Labor," in the Journal of Economic History 30 (1970), pp. 861-66, is cited by Jankovic and is an apologetic for free-enterprise capitalism following the teachings of Milton Friedman (as Evans openly states). Nothing is demonstrated in the work other than that, to escape the sad "necessity" of coerced labor, we must have a competitive labor market. That is, in other words, coercion must work automatically, as an offspring of the state of the labor market. As Marx writes, after the open violence of primitive accumulation, "the dull compulsion of economic relations" sets in to complete "the subjection of the labourer to the capitalist" (Capital, Vol. I: 737). This is a lesson that, by the way, Milton Friedman's "Chicago Boys" are trying to apply to post-coup Chile even too literally!

(59.) In particular, it applies to the early seventeenth century in Holland and the Hansa towns, during the origins of the capitalist mode of production, and to the early period of American industrialization in the nineteenth century (see G. Rusche and O. Kirchheimer: 24-52, 127-37). Rusche's observations in his letter cited above (see note 36) suggest that he believed this was also true of Nazi Germany.

(60.) See I. Jankovic: 26.

(61.) See G. Rusche and O. Kirchheimer: 84-113.

(62.) See I. Jankovic: 19.

(63.) This takes place in keeping with the principle of less eligibility.

(64.) See G. Rusche, "Arbeitsmarkt unci Strafvollzug," p. 74, and G. Rusche and O. Kirchheimer: 84-113.

(65.) That is why a broad and indeterminate use of the concept of Panoptisme is of doubtful utility, as I wrote above. From this standpoint, Jean-Pierre Barou's and Michelle Perrot's interview with Michel Foucault is ambiguous. See "L'oeil du pouvoir," in J. Bentham, Le panoptique, Paris: Pierre Belfond (1977): 7-31. On this and on what follows, see D. Melossi, "Istituzioni di controllo sociale e organizzazione ...": 302-17.

(66.) Not only in the countries they analyzed, but also in Italy and Sweden, to mention some others. See D. Melossi, "Statistiche 'della criminalita'carcerarie in Italia," Inchiesta VI(21) (1976). See also Annika Snare, Work, War, Prison and Welfare: Control of the Laboring Poor in Sweden (dissertation in criminology, University of California, Berkeley, 1977). We do not have US figures before 1926 and therefore none that are homogeneous with the period we are addressing. After 1926, we realize a sharp rise in state and federal imprisonment during the crisis years, a sharp decline during the war, and then a steady, almost unchanging trend until the early seventies, rising slightly above the 1926 level. But in the other countries I mentioned, the imprisonment trend also varied relevantly after the 1930s and 1940s. A full understanding of this last period requires fuller research, in order to address problems that I am simply hinting at here.

(67.) Beyond the legal variations, though, we are dealing with the gross social fact of the long-run use of imprisonment, as shown in the daily average prison population (as Rusche, Kirchheimer, and Jankovic do in their research).

(68.) In fact, a historical phenomenon between the nineteenth and twentieth centuries, which merits deeper inquiry, is the contemporary decline in the prison population and the rise in migration, at least in Italy and Sweden (even if in different decades; see the works cited in note 66). We do not have overall historical trends of the prison population in the United States before 1926, that is, in the decades in which the European surplus population poured in by the millions. It would be very interesting to check whether the trend in those decades for the American prison population was the opposite, i.e., rising (the rise between 1926 and late 1930s happened after the big migration and was linked with the Great Depression, as already noted).

(69.) See G. Rusche and O. Kirchheimer, pp. 166-76, and I. Jankovic, pp 18-19. A report to the US Congress, edited by the LEAA, demonstrates that in 1965, out of a total of 1.3 million offenders, the daily average number on probation was 684,088, or 53 percent of the total. A projection into 1975 showed over one million offenders (58 percent) on probation. In the same report it is stated that, even lacking complete general data for 1974, the partial ones show that the percentage of offenders on probation between 1969 and 1974 increased much more than did the prison population. In the four locations the study focuses upon, the counties of Maricopa, Multnomah, Philadelphia, and King, between 71 and 83 percent of the offenders received sentences of probation in 1974. (See report to the Congress, by the Comptroller General of the United States, State and County Probation in Crisis, LEAA, Department of Justice, May 27, 1976.)

(70.) On the specific nature of the relationship between the development of modern capitalism and the emergence of nonprison penal provisions (such as probation, parole, etc.), I am obliged to cite, once again, D. Melossi, "Istituzioni di controllo sociale e organizzazione ...": 302-7.

Dario Melossi *

* DARIO MELOSSI is professor of criminology in the School of Law of the University of Bologna; email: His current research concerns the process of construction of deviance and social control within the European Union, especially with regard to migration processes. This is the English version of the first part of the introduction to the Italian translation of Punishment and Social Structure, edited by Dario Melossi and Massimo Pavarini, published in 1978 by II Mulino (Bologna, Italy). A new edition of Punishment and Social Structure, with an introduction by Dario Meloissi, was published by Transaction Publishers in 2003. This article was first published in Crime and Social Justice 9 (Spring-Summer 1978).
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Title Annotation:Foundations
Author:Melossi, Dario
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Date:Mar 22, 2014
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