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Response to Review of The Corrigible and the Incorrigible

I can only thank Janet Weston for her thoughtful review of my book as well as her insights about the history of correctional rehabilitation. The subject, as I discovered, is a complicated one, and it is further complicated by the fact that debate over how to handle criminals more often than not only exposes stridently opposed views. The perpetual intractability of crime and delinquency makes it easy for many observers to fall back on platitudes like ‘nothing works’ or ‘hate the sin, love the sinner’. Nuanced analysis is harder, but indispensable, in this arena, and Weston offers plenty of this in her comments. Therefore, I thought I would take the opportunity to expand on a number of important points that she has flagged.

To start with, Weston is quite right in noting that a central theme in the book is the historical compatibility of punitive and retributive responses to criminals, on the one hand, and efforts aimed at understanding and reintegrating them, on the other. Indeed, as I argue, in Germany at least, these currents were more than mutually commensurate: they were two sides of the same coin, each requiring the existence of the other in order to be imagined and realized. The history of criminal justice is replete with uncomfortable truths, and this is one that proponents of reform on all sides rarely acknowledge. Both hardliners and progressives have tended to share the view that the rehabilitative ideal was the product of a kind of caring, empathetic impulse on the part of reformers; in reality, however, it was borne and sustained out of a will to more effectively control social delinquents.

Another dimension of the history of criminal correction I examine – one that Weston also notes – is the perpetual disparity between lofty ambitions and practical realities. As she acknowledges, especially in the US and UK since the 1970s, the general impression has been that criminals, prisons, and rehabilitation share something in common: they are all failures. Nothing works. This state of affairs has led social scientists and historians to examine whether in fact therapeutic interventions have abjectly failed. That said, little to no interest has been expressed in examining whether failure as such might not be an integral and expected part of criminal justice systems. To what extent have historical institutions and actors been aware of the shortcomings of their interventions? How have failures been measured and explained, and what consequences have these failures had on convicts, criminology, and public policy? Considering the history of criminal rehabilitation from this perspective raises the possibility that failure may not only be an anticipated and acknowledged part of incarceration, but that it is actually an indispensable part of modern public policy and criminal science.

Instead of attempting to verify or falsify the nothing-works thesis then, I went about considering the extent to which it is founded on a false historical premise – namely, that earlier advocates of prisoner rehabilitation were so mawkishly utopian that they remained blind to its limits and shortcomings. What I found was that, while idealistic ambitions were repeatedly frustrated, this proved to only create second- and third-order problems for the criminal justice system to manage. Accounting for these frustrations became part of the research agenda and administrative work of specialists. Uncertainty was expected, and the behavioral sciences of the 20th century supplied a ready way to accommodate failure through the logic of statistical probability, degrees of accuracy, and algorithms. And as the example of preventive detention commitment in Germany demonstrates, clinicians and judges accommodated themselves to correctional uncertainty by erring on the side of conceding more false positives than false negatives.

Failure, then, needs to be recognized as a constituent element of the correctional prison. To say this, however, is neither to repeat the mantra of engineers that we invariably learn from our mistakes nor to remind us about how ambitious modern projections of power can be. Rather, it is a call to acknowledge just how much failure and its management have informed the architecture of the rehabilitative penal system. Seen from this perspective, the ‘punitive turn’ of the last quarter of the 20th century appears to have been less a reactionary about-face than a radical acceptance of failure as an organizing institutional principle.

Failure’s historical role in shaping correctional interventions is no more apparent than in the way in which the German system oriented itself around distinguishing between the corrigible and the incorrigible. From a history of science perspective, it is remarkable how much attention researchers conferred upon this problem. From the First World War, when Theodor Viernstein first began conducting research in this area, until the 1970s, German investigators made what came to be called ‘social prognosis’ the sole focus of their studies. To the best of my recollection, no one – outside of clinical researchers studying the effects of castration on sex offenders – made different treatment regimes the subject of systematic study. Every now and again, mention would be made of the possible effects of prison routines, cell configurations, work, staff practices, and peer culture on the attitudes and behavior of inmates. But by and large, researchers treated prison as a black box: an object measured only by its intake and output, its inner workings left unexamined.

Finally, Weston identifies some directions for future research on incarceration and criminal justice, particularly noting the need for more comparative analyses as well as histories focusing on gender. In both those regards, I would point to one particular historical innovation that warrants this kind of attention: victimology. The emergence of victim advocacy groups in the 1960s and 1970s was an international phenomenon, groups that prominently featured women and women’s organizations as their drivers. By the 1980s, they proved to be enormously successful in reorienting criminal justice around victim demands and needs rather than those of convicts. As I point out in the book, however, victim-oriented justice appears to have had few, if any, parallels in fascist and communist states. The reason for this, I speculate, has to do with the fact that the more recent victim-orientation has emphasized individual, not collective, suffering and compensation. All this, however, requires far more research before anything definitive can be said on the subject.