International Penology - Canadian Law - Term Paper Example

International Penology/Canadian Law Roll No: Teacher: 26th March 2009 International Penology/Canadian Law Introduction The state of the penal system in practice amongst many nation-states in our day and age is the product of centuries of evolution of man’s quest to come out with a systematic structure that seeks to among other things to bring deviance all forms of criminal deviance under absolute check. In doing this, there is also a guarantee of social respite as it were for social conformists. Of course, this has not been without massive debate as to the most ideal path to pursue in the quest to bring deviance under check. A critical point worthy of note is that central to all the divisive debates as to how to deal with deviance is the universal consensus in frowning on deviance as a whole. Beyond this consensus then emerges the question of which approach in dealing with deviance is not just practical but above all sustainable and promotes the human cause. It is therefore against this background that this essay will be conducting a critical analysis of the Marxists theoretical approach to conceptualizing the entire question of deviance before delving into the prime question of its management in contemporary times. Another cardinal facet of this essay is that inherently embedded in the deep question of criminal deviance within the framework of the penal system in use today amongst a good number of countries in the world today are deep seated political, economic and social connotations—connotations that have far reaching implications on how the question is appraised and subsequently being addressed. Within the scope of this essay, emphasis will be placed on a select handful of western countries to illuminate the analysis being made in this debate. Marxist theories have a long stream of conceptualizing criminality beyond the traditional approach to understanding the evolution, structure and dynamics of device within a holistic milieu (Mintz, 1975, 153). Within this scope also, it is also understandable that if the current penal structure is refracted through the lens of Marxism then it becomes abundantly clear that the question stretches beyond a disconnected ideological theory base into distinct force that brings to the fore hitherto unknown facts that notwithstanding have a dramatic bearing on the subject of criminal deviance as the contemporary penal system portrays; the case becomes even very stronger if the practices in modern nation-states like the United States, Great Britain and Japan which are classical examples of if you like neo-liberalization, are subjected to a microscopic analysis. Consequently, in what follows in the next few paragraphs is an exhaustive analysis of the penal system in western countries as a representation of an independently structured organization that revolves around political and economic gears. A Marxist Theoretical Discussion of the Penal System A glaring weakness of the traditional capitalist system has always being the creation and proliferation of an ideology that is cunningly biased to suit the needs of a minority caste at the expense of the wider majority. Capitalist structures are explicitly credited for being successful at doing this and overtime the separatist dogma of exploitation where dog eats dog becomes ingrained in the social structure. The rising prison population in the United States is a living testimony to the systematic institutionalized political and economic disenfranchising strategy against some identifiable social groups. This is in sharp contrast to the declining figures being recorded in social and welfare democratic states like Finland. Within the continent of Europe, Great Britain has earned the reputation for having the highest incarceration rates (Ian, 2005, 1). There is no better way to understanding this phenomenon without tracing and locating the citadel of power in the institution that promulgates it. It is easy to discern that in a typical capitalist social institution the direct beneficiaries of the legal regime are those who design it in the first place, talking about the top elite. It therefore begs the question as to how penal systems, which are supposed to as it were in the ideal sense intended to serve as a social safeguard, tend around to be an exploitative instrument. Take for instance the massive fraud, greed and selfishness that have pervaded the corridors of Wall Street the global engine, resulting in the entire global economy being held in ransom. Recent startling revelations arising from the arrest of a leading criminal Bernard Madoff, a Wall Street guru coupled with the controversy surrounding the selfish moves to award colossal sums of bonuses from tax payers’ money to executives of AIG the leading insurance corporation in the United States serves to reveal that there is more than meets the eye in the capitalist structure. Compare this misdemeanor to the thousands of inmates held in correctional facilities across the country on charges of common law offences. Weighing both sides of the coin reveals a sharp disproportional dispensation of justice when it comes to white color criminality and blue color crimes, notwithstanding the magnitude of the crime with the case of Bernard Madoff serving as a case in point to indict the former (Mintz, 1975, 156). In the light of the foregoing, there is a justifiable imputation to hold the capitalist system responsible for serving the interest of an ideological stronghold that has a stake in the penal system. The political connection in the ideology of exploitation in the penal system cannot be denied if huge corporations make huge financial contributions to the campaign budgets of political parties. It therefore explains the reasons behind their ability to outwit and go unpunished for their criminal wrongdoings in the financial systems. Marxist thinkers are of the opinion that the real solution to addressing the question of deviance and its attendant recidivism cannot be treated in isolation to the central malady of ideological masking that defines the practice of criminal punishment and its conceptualization. Pioneering Marxist scholars like Gustav de Beaumont and Alexis de Tocqueville were quick to point out this ideological connection of the penitentiary institutions as an intricate state apparatus serving the interest of a nation’s elite (Miller, 1974, 60). It should be noted that the conclusions arrived at by Gustav de Beaumont and Alexis de Tocqueville were largely influenced by the early works of Rusche. In setting the tone, Rusche (1978, 231) does establish an economic basis for establishing and maintaining prison systems based on the relative availability of labor resources at any giving time. Progressively a good number of Marxist writers made significant contributions in enhancing the understanding of the penal system by stretching the work of both Rusche (1939, 83) and Gustav de Beaumont and Alexis de Tocqueville beyond the conventional economic domain. (For further details see Foucault, 1977, 178; Ignatieff, 1978, 54). For example, Hogg (1979, 39) argues that beyond the question of the demand and supply of labor, other far reaching social factors did play a historical role in the adoption and use of the prison system as a means of achieving social control. This assertion however does not take into account the ideological undertones in reaching this level. Of course, from a Marxist perspective there is no gain arguing against the fact that beyond social control the advent of the prison system served as a means through which the state acting as a bourgeoisie agent reinforces its powers on the masses using the excuse of political legitimacy. In many ways the link between imprisonment and economic disenfranchisement especially in the United States is comprehensively part of a grand scheme to perpetuate the class conflict to the disadvantage of the socially disadvantaged (Jankovic, 1977, 34) perpetrated by the inequalities promoted and reinforced by the ideology that regulates the labor market. Marxists have identified the use of convict labor yet another visible economic manipulative and exploitative instrument to respond to changes on the labor market (Miller, 1974, 65). Paradoxically, yet typical of the class capitalist system much of the profit accrued from the use of convict labor is pumped back into maintaining the costs of keeping the penal system running. Stated differently, convicts who are most often than not made up of members of the working class have been by the design of the ruling class destined to the vicious cycle of a lower class through the system that is determined to keep them in that level. Another monumental study of the penal system in the capitalist class system was conducted by Pashukanis (2001, 59), an ace Soviet Marxist scholar. In his work, he did make specific reference to the fact that the traditional legal regime as practices in western capitalist democracies provides an excuse for the consolidation of class struggle where justice has being robbed off its true value. The insatiable craving of the bourgeois to cling to the commanding heights of economic power have thus set the parameter for defining what constitutes criminality, criminal culpability and its resulting punitive actions. Individual guilt takes precedence over corporate responsibility for actions is how Pashukanis (2001, 61) sums up what he sees to be the class dominance in capitalist penal systems. Detailed Analysis Statistics indicate that whilst the numbers of incarcerations are dropping in countries like Germany, Finland, Austria and Japan the United States and the United Kingdom are reporting astronomical figures. In the United Kingdom alone, the last decade has witnessed an increase in 60% of reported incarcerations, a trend that has led Ian to allude to a looming state of crisis in the penal system in the United Kingdom. He believes that the extent of the crisis is so overwhelming that the state is in a terrible fix because it cannot provide answers to begging questions as to the immediate factors that have brought that country this far (Mintz, 1975, 158). A school of thought seems to suggest a subtle political undertone to this unfortunate turn of events. It is speculated that the British government in seeking a political solution to crime is excessively acting through panic by influencing the legal philosophy to be inclined towards stiffer punishments. Today debates are rife about the way forward; whilst government is being urged to increase spending money to expand prison facilities to absorb the increasing number of people who find themselves victims of a rugged penal and criminal justice system critics contend that the solution does not lie in further spending but a comprehensive review of the prevailing penal philosophy in the United Kingdom. Discourse on this dilemma will be rendered incomplete if prying questions are not asked about the English legal system. In the grand scheme of things of what good is the current legal philosophy undergird in stiffer punishments to the society if it has visibly failed to create enough deterrence. Moreover, it is also prudent to ask if indeed criminality is a reality or perception created and proliferated to achieve an ideological cause. Is the British political system inciting and capitalizing on public sentiments to achieve its class agenda? The United Kingdom like the United States has earned this notoriety because of their unwitting confidence in the harshness of the penal system to bring about social correction. Going by statistical details it is known that the United States has an incarceration rate of 737 per 100,000 people and the United Kingdom has 148 per 100,000 (Takagi, 1975, 149). Arguably, the common thread that runs through both the United States and the United Kingdom with regards to the political-economic conceptualizing of the penal system is the gratification of a class ideology. Another case in point is the current war on terrorism being waged by both countries. Under the guise of the war, the governments of the US and the UK have resorted to political populism to consolidate their grips on the economic powerhouses namely the oil fields in Iraq, war profiteering by individuals and their business cohorts like former vice president Dick Cheney and his Halliburton Corporation. Guantanamoe Bay off the Cuban peninsular is being used as a ruthless detention camp to carry out oppressive activities against alleged militant criminals. The so-called leaders of the free world who are suppose to be vanguards of civil liberties have turned their backs against a virtue much preached in the worse form of scorn ever known in the annals of humanity. On the other end of the stick are political moderates represented by countries like Germany and Finland. For obvious reasons, the cost of politically gambling with the penal system in pursuit of an ideological goal will be cost to high to pay for the governments of these countries. Germany for instance has an incarceration rate of 94 per 100,000 people. In comparison to the neo-liberalist United Kingdom and the United States, this is a very modest figure. Understandably, Germany’s ability to cut down the incarceration rate has much to do with a historical lesson serving as a guide. As opposed to radicalism, the Germany posture is more inclined to achieving a modernist state of moderation in the application of punishment as an integral part of responsive justice delivery system. Finland’s welfare democracy is wrought in the Scandinavian long tradition of being humane as opposed to greedy profiteering being espoused by capitalism; the slavery mentality that is premised on profiting by disenfranchising others. Evidently, by distancing herself from the extremes of neo-liberal political leanings can be used to partly explain the trends as they are today in Finland. Conclusion In summing up, the main contention of the Marxist school of thought is basically premised on the understanding that the penal system with its agency is currently being held captive to the insatiable tastes of capitalist demagogues whose only source of prosperity lies in creating a class of thousands of disenfranchised people behind bars, thereby ultimately cutting them out of the social dispensation, exploiting their labor and scooping off even the dignity of living in them. This is by no means an empty charge on the contrary it is backed by credible evidence, with the current global economic meltdown serving as living reminder of the fact that the ruling class create the laws, determine who should be guilty, and how the punishment should be meted out. In all this justice has assumed an ideological coloration in favor of powerful social elite who wield the means and they intend condemn the working class to gloomy life of redundancy within the confines of the penal system. References Foucault, Michel. (1977). Discipline and Punish. New York: Pantheon Books. pp. 175-188. Hogg, Russell. (1979). “Imprisonment and Society Under Early British Capitalism.” Crime and Social Justice 12. pp. 36-43. Ignatieff, Michael. (1978). A Just Measure of Pain: The Penitentiary System in the Industrial Revolution, 1750-1850. New York: Pantheon Books. pp. 42-61. Ian, Loader. (2005). “The Political Art of Penal Moderation” accessed on March 19, 2009 from www.prisoncommission.org.uk/fileadmin/howard_league/user/pdf/Commission Jankovic, Ivan. (1977). “Labor Market and Imprisonment.” Crime and Social Justice 8. pp. 23-50. Miller, Martin B. 1974 “At Hard Labor: Rediscovering the 19th Century Prison.” Issues in Criminology 9 (Spring). pp. 60-65. Mintz, Robert. (1975). “Federal Prison Industry — ʻThe Green Monster.ʼ” Crime and Social Justice 6. pp. 153-158. Pashukanis, Evgeny. (2001). The General Theory of Marxism and the Law. New York: Transaction Publishers. pp. 54-61. Rusche, Georg. (1978). “Labor Market and Penal Sanction: Thoughts on the Sociology of Criminal Justice.” Crime and Social Justice 10. pp. 230-239. Rusche, Georg and Otto, Kirchheimer. (1939). Punishment and Social Structure. New York: Columbia University Press. pp. 71-83. Takagi, Paul. (1975). “The Walnut Street Jail: A Penal Reform to Centralize the Powers of the State. “ Federal Probation (December). pp. 142-149. Read More