Penal Policy: International Trends and Estonia
The means of controlling criminal activity include the carrying out of sentences imposed upon criminals and correction, which can also be referred to as the treatment of criminals. *1 This relatively obscure activity of the justice system receives public attention only in extreme circumstances when, for instance, there has been an insurrection or escape at a correctional institution, or it has come to light that there has been an abuse of administrative power. The carrying out of a sentence almost enters a world of its own, into which individuals who have been processed through the justice system (criminal act, investigation, court) are channelled on a regular basis, and who after the passage of a certain amount of time re-enter society. What happens in between usually only interests the individuals undergoing punishment, their next of kin and a relatively small circle of officials and experts who are involved due to the responsibilities of their employment.
In developing a deeper understanding of the problem, it becomes clear that correction, as the final link in the criminal justice system, determines to a great extent the effectiveness of the functioning of the entire system. The following questions, among others, arise: As what kind of individual does the person who has previously committed a crime emerge from the correctional institution? How does his or her reintegration into society occur? What does it cost to keep a person incarcerated? These kinds of problems become especially topical during times of rapid societal change, when, as a rule, the need to reorganize the entire judicial system becomes obvious.
The creation of an entire penal system requires expenditure of great sums of money and reorganization of personnel. Initially, at least two issues must be resolved. First, it is necessary to become well-acquainted with the international experience regarding the treatment of criminals, and to learn for oneself the ideological and practical objectives and effectiveness of the penal systems of other countries. Second, the local situation must be objectively analysed. This involves, first and foremost, the incidence of crime and the economic situation so that the penal system which is created will be in keeping with the circumstances and opportunities as they actually exist and in reality solve the problems faced by the society. It is precisely these two components which should determine the socio-scientific approach to be used in creating a new and effective criminal justice system in Estonia.
The crime policy concept for the treatment of criminals *2 has undergone changes in the last few decades and has been figuratively compared to the swing of a pendulum or the movement of a sailboat in the wind (Christie, 1981; Lösel, 1992). In the 1960s and early 1970s, the positivist or liberal-realist approach to criminal behavior was dominant. Criminal behavior was foremost dealt with as a social problem and the criminal was seen as an individual who has adapted poorly to society’s norms. During this period, scientists and practitioners spoke a great deal of the need to consider the personal individual differences among criminals in the course of their treatment so that their integration into society or rehabilitation would be successful. They were convinced of the great opportunities provided by social therapy for solving the problem of criminal behavior (Menninger, 1966; The Challenge of Crime..., 1968; Irvin, 1980; and others). This period was also characterized by a critical attitude toward prisons. Of course, this point of view did not mean that there was a call to simply liquidate the classical institution of incarceration. But the conclusion was reached that prisons and other institutions for the isolation of individuals do not accomplish anything to rehabilitate the criminal. In other words, a prison does not help criminals to readapt to their future life in freedom. On the contrary, correctional institutions of that time had become in their own way “universities for criminals” (this was already noted by C. Lombrese), and for that reason the criminal who was released into freedom often was incapable of leading a law-abiding life. Out of this grew the demand to cardinally reform the entire penal system, approaching the problem from the need to socially rehabilitate the criminal, and this was actively begun in practice.
In the 1970s, it became apparent that there were significant shortcomings in the liberal approach and more and more critics of this penal ideology appeared. The criticism from the “conservative” or “punishment-oriented” position was based on the arguments that the new penal policy was:
a) insufficiently directed toward the general prevention of crime;
b) not in conformity with the seriousness of the crime which was committed;
c) not providing sufficient security to the public (social security); and
d) too expensive.
The critics from the “progressive” side were of the view that:
a) crime should be handled as a deviation from society, not as an individual’s pathology;
b) penal ideology was realized with a new stigmatization based on a medical model;
c) control over the person was increased as a result of the power of social services which were rendered;
d) there was insufficient judicial control over informal decisions and involuntary influencing of individuals; and
e) the idea of social therapy was itself fundamentally opposed to the idea of punishment and therefore it was not possible to achieve positive results by dealing with criminals in correctional institutions (Lösel. 1993). In addition to these arguments, studies of the effectiveness of the new penal policy rated it as indifferent or negative. The discussion ended with the victory of the pessimistic approach regarding the new penal policy (nothing works) and this psycho-social approach toward criminals lost its leading position (Lipton, Martinson & Wilks, 1975; Kaiser, Dünkel & Ortmann, 1982; Christie, 1986; Schüler-Springorum, 1986).
By the mid-1970s, the leading position in the discussion regarding crime policy was taken over by the classical approach toward crime. Some authors have tied this together with a general societal change in attitude and the so-called conservative revolution in criminology (Currie, 1991). From the perspective of the neoclassical position, criminal activity was foremost seen as a problem of the organs of the justice system, not as society’s problem. With the assistance of isolation, neutralization and frightening of criminals en masse, criminal activity can be controlled, since crime is the result of insufficient punishment (Wilson, 1975). This was the fundamental position of neoclassicism. In substance, this represented a return to the social Darwinism of the 19th century and the criminal was treated as an individual who could rationally make choices between “good” and “evil” (Zamble, 1990).
The new approach cast aside the idea of rehabilitating criminals and considered it old fashioned and in reality not achievable. The proponents of this new direction were also of the view that one should not look for the reasons for criminal activity only in society and that it is not possible to significantly influence the level of crime or its dynamics through the assistance of social programmes. One of the favorite arguments of the conservatives, for example, was the “paradox” or “aetiological crisis” of the rise of crime in the 1960s (Young, 1988). According to liberal understanding, crime should have been reduced during this period, since in Europe and in North America the general socio-economic situation had improved, in that incomes of the population increased, unemployment decreased, and greater resources were provided for social programmes. Crime however, continued to increase and the “conservatives” concluded from this that the position of the “liberal-realists” was not valid. The blame for the rise in crime was placed on the ineffective work of justice authorities because they did not deal with crime in accordance with the expectations of society. All hope was placed on such crime policy ideas as deterrence, selective incapacitation, just deserts punishment, situational prevention and others (Andeneas, 1974; Lösel, 1993).
Conservative understanding of penal policy dominated until the beginning of the 1990s, when again there began to be increasing criticism of the great number of prisons (and prisoners) and excessive expenditure. Once again attention was turned to informal methods of handling prisoners (Vob, 1985; Matthews, 1988; Vass, 1990). At the same time, the renaissance of psycho-social intervention *3 in prisons and other correctional facilities began (Lösel, Koferl & Weber, 1987; Lösel & Koferl, 1989; Gendrear & Andrews, 1990; Lipsey, 1990, 1992; McGuire & Priestley, 1992).
This recent turn in the discussion of penal policy was caused by many circumstances, the most important of which are set out below. First, the “new conservative” ideas which were put into practice were not as effective as had been hoped for. Second, new research methods (foremost longitudinal studies) which made it possible to convincingly prove the essential part of the criminal gene began to be employed to determine the role of psychological and social factors in crime. Third, more effort was spent on the development and improvement of programmes for treatment and rehabilitation of criminals and such programmes became more adequately addressed toward different categories of criminals. Fourth, by the beginning of the 1990s, the methodology for measurement of the effectiveness of these programmes and methods had been greatly advanced (Lösel, 1993). It is obvious that during the penal policy reforms of the 1970s and 1980s, the idea of changing the criminal to become more law-abiding had been left too far in the background. With this, the pendulum of penal policy had gone through a full cycle and began moving from neoclassicalism in the direction of neopositivism.
Despite the actual dominance of one approach or another, it is possible to establish some firm trends in the development of penal policy. The handling of criminals as a whole can be illustrated by the following diagram.
The arrows on the diagram show the direction of development of penal policy in the beginning of the 1990s, but also the general trend during the entire 20th century. The first thing the diagram reveals is the diversity of sanctions and measures competing with classical incarceration punishments. Within the realm of incarceration punishments, the role of social therapy for criminals is ever increasing. At the same time, it is also obvious that the relative importance of incarceration is decreasing as a result of the increased use of non-incarceration alternatives since it has been concluded that isolation has a bad influence on individuals. It is also characteristic of recent trends that attempts are being made to find new opportunities which will permit avoidance of imposing criminal sanctions. Behind this process is the abolitionist position that coercive public institutions should interfere in the lives of citizens relatively infrequently (“as much as necessary, as little as possible”).
Liberal penal policy is also rooted in the direct carrying out of incarceration punishment. There are three principles which form its basis: normalization, openness, and responsibility. First, normalization means that taking away the criminal’s freedom is itself the punishment. All other restrictions however for prisoners in their living conditions and social quality of life must be minimalised. Second, the requirement to keep the prison open is to some extent paradoxical, since the goal of a prison is to keep the prisoner “locked up” away from open society. The openness of prisons is enforced primarily by a regime which permits good conditions for visitation, working and education outside the prison, censor-free mail etc. On the other hand, there is also a greater involvement on the part of social organizations and associations in the treatment of criminals. The goal is to produce in the prison as conflict-free an atmosphere as possible and preserve most of the prisoners’ positive ties outside the correctional institution. The openness of the prison depends on an exact evaluation and classification of the inmates based on their dangerousness to their surroundings. The goal also is to permit opportunities for the majority and increase the controls on the dangerous minority. A system which attempts to severely control everything leads back to the control model and reduces security and safety for all. Third, the principle of responsibility attempts to establish new relationships between inmates and prison workers in which there are individuals within the prison who are capable of handling responsibility and who have rights and responsibilities. The inmate bears more of a resemblance to a client who is presented with a certain number of services and opportunities which arise from his or her needs. Thus, even when an individual has lost his or her freedom, he or she remains a member of society. The ultimate goal is to bring as many inmates as possible back into open society (Langäs, 1990; Laine, 1993).
The changing of the dominant ideology of handling criminals and the employment of specific methods obviously depends not only on the increase in crime but also, and perhaps even more, on the general socio-economic situation exhibited for example, by the rise or decline of the economy and the influence of public opinion. At the same time, the system used by each country displays its own specifics and changes in actual penal policy do not take place with the same speed as developments in the theoretical discussion. For example, most of the correctional institutions oriented toward therapy would continue to operate even during periods when the ideology of rehabilitation is out of favor. Geographical differences (for example, between Europe and North America) and ideological barriers (for example, between Eastern and Western Europe) also play a great role and should be noted.
One of the most characteristic features of the penal policy of Western European nations, that is, the relatively small role played by incarceration punishment, is clearly manifested by the small number of prison inmates. The number of inmates per 100,000 population is a popular index for the comparison of penal policies of different nations and by the end of the 1980s and beginning of the 1990s the number did not exceed 100 in any of the countries in the region. The Nordic countries of Sweden, Norway, Finland and Denmark, where the systems used for the treatment of criminals have become worldwide symbols for socially oriented control of crime, are clearly in the forefront. Especially interesting is the development of penal policy in Finland where during the years 1952 to 1989, the number of inmates per 100,000 population was reduced from nearly 250 to about 60. This means that from being a country with one of Western Europe’s strictest penal policies, Finland is now among those countries which have the fewest inmates (Christie, 1993).
In sharp contrast to the development of the countries of Western Europe is the justice system of the United States of America, where the relative importance of incarceration punishment has continued to grow in the past few decades. While in 1979 there were 230 inmates per 100,000 population, by 1989 the number had grown to 426. In 1991, the number of inmates in the U.S.A. had increased even more and had exceeded 500 per 100,000 population which places that country among the top three in the world in the use of prisons (Mauer, 1991; Mauer, 1992).
The philosophy of the treatment of criminals and practical experience has developed completely differently in the former Soviet Union. Estonia for nearly 50 years was forced to go along with all of those developments. Until the mid-1980s, the classical approach to crime was the only conception of crime policy. The liberal socially oriented understanding of controlling crime was beginning to gain in importance only by the second half of the 1980s (Raska, 1985; Yakovlev, 1988; Zhalinskiy, 1989). This was during the same period that neoclassicalism prevailed in Western Europe and North America. Most important however, was that the liberal approach was never applied in the former Soviet Union since there was no basis for it in law and there was no motivation for the state to create new types of institutions. The treatment (punishment) of criminals occurred independently of the theoretical criminological discussion, was anti-human in nature, and remained within the framework of the asiatic-Stalinistic paradigm.
It is difficult to state anything specific about the numbers of inmates in the former Soviet Union because there is reason to doubt the trustworthiness of the statistics kept during that time. It is estimated that the maximum number of inmates in 1950-1951 was nearly 2.5 million which equals 1,423 per 100,000 population (Beck, 1992). After that time, the numbers have decreased being only 353 in 1989. It is also difficult to find authentic information about the current prison population of Russia but figures ranging from 300 to 500 per 100,000 population have circulated in the literature.
In the former Soviet Union, the main emphasis was placed on punishment and control of criminals as well as on extensive repressions which were characteristic of all of the socialist states. In this manner, the authorities also attempted to solve political issues, keep any opposition from forming and find a solution to economic difficulties. Prisons were completely closed institutions where what occurred was kept secret and were established in accordance with the military model. Criminals were treated as dangerous enemies of the public who did not possess even the most elementary rights which could be demanded from the state. All of this was unavoidably reflected in the criminal laws of the time and the current criminal laws of Estonia have remained the same to a large extent (Mereste, 1996).
In 1991, after Estonia restored its independence, a new concept for the treatment of criminals was accepted. When fully implemented, it will meet the standards of the European Union. The result was that a new edition of the previous Criminal Code took effect in June 1992 and in July 1993 the Criminal Procedure Code entered into force (an edition of the previous Criminal Process Code). Beginning in August 1993, Estonian correctional institutions have been under the jurisdiction of the Ministry of Justice instead of the Ministry of Internal Affairs (Walmsley, 1996).
As of 1 July 1996, there were ten correctional institutions in Estonia with a total of 4,359 detainees. Of those, two are prisons housing detainees whose cases are being investigated and awaiting trial (one for minors and one for adults); three are closed (maximum security) prisons for adult male inmates; two are medium security prisons for adult male inmates; one is a medium security prison for women; one is an open (minimum security) prison for men; and one is a juvenile prison. The largest institutions are for adults who are being detained pending investigation and trial which houses over 1,200 detainees and the maximum security prison for adult male recidivists which houses over 1,300 inmates. The prison population of three of the institutions are between 400 and 500 inmates and the remaining five institutions house less than 150 prisoners each (see addendum 1).
The dynamics of the Estonian prison population per 100,000 population for the years 1980 to 1995 show that the number of inmates per 100,000 population has remained around 300. Despite the fact that compared to the mid-1980s there has been a significant drop in the number of inmates in Estonia, this statistic still exceeds that of Western Europe by nearly three times (see addendum 2).
The one-sidedness which characterized the reforms which took place in Europe and North America in the 1970s and 1980s may also be noted currently in the ongoing reforms in the Estonian penal system. Attention is being primarily focused on improvements to the physical environment of the institutions (such as entrenching the cell system, bringing living conditions into line with international standards and guaranteeing human rights to inmates in accordance with the requirements of the United Nations and the Council of Europe. There is far less interest in the actual process which should be taking place in the correctional institutions. For example, the possibility of using psycho-socialistic intervention as a method of modifying the personality of a criminal has not received the necessary attention. Part of the reason which has caused this one-sidedness is undoubtedly that local and foreign consultants in the field of penal policy are for the most part practical workers who rely more on their own experience and less on scientific generalization and analysis (Lakes & Taylor, 1993; Kiviloo & Hilborn, 1993).
The main issue which awaits a scientific solution presently is how and based on which methods should an effective system for the treatment of criminals operate. In addition to economic problems and the legal inheritance from totalitarianism, the employment of quick changes in the area of treatment of criminals is hampered by the actual crime rate situation in Estonia and by public opinion. In Estonia, as in other former Eastern Bloc countries, after independence was restored the crime rate rose dramatically and qualitative change moved in a negative direction (Saar, 1996). Despite the fact that criminologists have repeatedly proven the low rate of effectiveness of a severe penal policy in reducing crime, the rapid liberalization of sanctions during a period of rising crime is problematical. Although it is the European style of penal policy that in the long range perspective has been more successful than the repressive crime control models, it is difficult for public opinion to become free of the earlier stereotypes. It is not surprising that in connection with loosening controls and the growing fear of criminals, there is a demand for stricter punishment of criminals who have been apprehended, that is, more frequent and longer prison terms and a more severe punishment regime. This is also evident in how the death peanalty is regarded in Estonia. More than half of the Estonian population favour its retention.
If justice and crime control is also considered a cultural phenomenon which expresses the dominant values and understandings of a society, then it is not possible to approach
the punishment (treatment) of criminals only from a narrow utilitarian position. The basic values of Western civilization are expressed in its penal philosophy and practical development. This development shows that these values may be in conflict with each other, but the general trend of the development is nevertheless in a single direction toward liberalization. Estonia’s joining and integration into Europe can only be accomplished through the greater acceptance of its values. This is a trend which also must be followed in Estonian penal policy no matter how utopian and difficult to accomplish it may seem to Estonians at this time.
In conclusion, Estonia with its relatively small population and territory situated between East and West both geographically and in the sense of social development, realises that it is in a unique and opportune position for social scientific advancements. Since during the fifty years of Soviet occupation all of the justice structures were liquidated and replaced with foreign ones, the stage in Estonia is clear, upon which a system for treatment of criminals may be planned and created which incorporates all of the experience of the Western democratic nations. It would be a shame if the reforms in Estonia would be limited to filling the gaps with the assistance of and adjustments to the old system.