Contemporary Crises 13: 327-349, 1989. (~ 1989 Kluwer Academic Publishers. Printed in the Netherlands.

Economy, punishment and imprisonment CHRIS H A L E Faculty of Social Sciences, Rutherford College, University of Kent at Canterbury, Canterbury, Kent, CT2 7NX, U.K. Abstract. Recent trends in sentencing in England and Wales are discussed and related to the

debate concerning the relationship between unemployment and imprisonment. The shift towards a more punitive justice system are traced to the abandonment of full employment economic policies in the mid 1970s.

Introduction The prison system in England and Wales is creaking and close to collapse. During 1988 in a desperate attempt to ameliorate the problem in the short term the Government opened unused Army camps as temporary prisons. In the longer term however suecessive governments of both right and left have failed to make any impact upon the crisis of prison overcrowding and the excessive use of imprisonment as a means of punishment by the judiciary. In order to understand this failure it is necessary to locate penal poliey in a wider economic and social framework. In a seiles of papers (Box and Hale 1982, 1985 and 1986; Hale 1988) the relationship between unmemployment and imprisonment was examined using data for England and Wales since the Second World War. The general conclusion of these analyses was that unemployment and imprisonment were related in the sense that, after controlling statistically for the level of erime and numbers convicted, an increase in the level of unemployment led, on average, to an increase in the numbers incarcerated. Since the starting point for this work, and many other of the more radical studies in this area, is the work of Rusche and Kirchheimer (1939), and in particular the idea that in times of economic crisis increasing use will be made of imprisonment, I will begin by reviewing their work and its subsequent theoretical development and empirical application. As an empirical contribution to this work will present results which show that the relationship between unemployment and imprisonment has been particularly strong in England and Wales since 1974. In addition to this I wish to offer some reflections upon out earlier work and attempt to address the critieism of Melossi (1985) that these studies, Box and Hale op cit. but as well Greenberg 1977 and Jankovic 1977,

328 ù . do not furnish us, in other words, with a satisfactory account of the contemporaneous shift in society toward verbalizations which become motives for more severe punitive action among agents of social control, at a certain point in time. Melossi (op. cit. p. 20) In addition to developing the empirical and theoretical links between unemployment and imprisonment, a further purpose of this current essay is to review recent trends in punishment in England and Wales and in particular the proportionate use of imprisonment, probation and fines. Occasionally I shall refer to figures for the whole of the United Kingdom but usually ignore the separate judicial systems of Northern Ireland and Scotland. This is a somewhat risky procedure given the use made of the supposedly exceptional circumstances in Northern Ireland for experimentation with control techniques and softening up of public opinion prior to their introduction on the mainland (see for example Hillyard 1987). In particular it will be seen that the long term trend of a decrease in the proportionate use of imprisonment and a corresponding increase in the use of fines has been reversed. Since 1974, and particularly since 1979, the use of imprisonment has been increasing relatively as well as in absolute terms. In order to try to explain these shifls I look at the British economy since 1945 concentrating upon the changing Government strategies. I shall argue that, even from a cursory examination such as attempted here, it is clear that the years 1974-1976 marked a decisive break, in terms of government economic policy, with what had gone before. Under the guidance of the International Monetary Fund the Labour Government of the period adopted monetarist policies with large cuts in public expenditure and subsequent rises in the level of unemployment. The resistance of the British working class to these measures and the increase in union militancy especially in the public sector led to the so-called winter of discontent in 1978/79 and the subsequent election of the radical right-wing Tory government in 1979. They came to power with an economic policy based to a greater or lesser extent around three strands: tight monetary control, cutting public expenditure and reducing state intervention and curbing the power of the unions. While they quickly abandoned the practice if not the rhetoric of monetary controls they have been relatively successful in their appointed task of shaking out inefficiency in the economy. The major success of the Thatcher administrations has been the defeat and demoralization of the Trade Union movement. While the economic recession, especially between 1979 and 1981, did its work in weakening the power of the Unions through the high levels of unemployment, the ideological attack upon them by the Tory Government was also important. An important strand in this attack was the successful equating of industrial action with a disrespect for the rule of law.

329 Finally an attempt will be made to bring together the discussions of the earlier parts of the paper and consider their relevance for understanding the relationship between the economy, punishment and imprisonment in England and Wales. I shall do this firstly by relating the changes in governmental strategies to solve the recurring crises of profitability at least schematically to Melossi's "vocabularies of punitive motive" (Melossi 1985). Secondly I shall reconsider the arguments in Box (1987) on the effects of beliefs upon actions in the criminal justice system. I shall argue that, since the adoption in the 1970s of what may be broadly designated "monetarist" solutions to the crisis involved not only a rejection of full employment, but also an abandonment of welfare based solutions to the problems produced by this rejection, this necessarily required a shift towards more punitive measures within the criminal justice system. In particular it will be argued the shift from welfare to discipline in social policy and political rhetoric which accompanied the cuts in public expenditure and the abandonment of full employment in the 70s created an atmosphere which reinforced the beliefs of the judiciary and magistracy concerning the criminal and the unemployed. This move was accelerated when the Tories adopted the mantle of the "Law and Order" party in their campaigns and publicity prior to the 1979 election. The atmosphere created by their social policies combined with the consequences of the deepening recession in 197981 enabled the hard penal policy to continue throughout the 1980s.

Punishment and the mode of production

Here we are considering changes in punishment, primarily the use of imprisonment, in orte criminal justice system, that of England and Wales during a specific historical period, post World War II. While there may be similar trends in other advanced capitalist societies facing similar economic and social problems this is not an inevitable consequence. In particular, as Downes (1982) has noted, between 1950 and 1975, although both countries has similar increases in crime levels, while the prison population in England and Wales roughly doubled that in the Netherlands more than halved. To be precise what is of interest is changes in sentencing practice within a particular capitalist economy and not how punishment alters to conform with differing modes of production. It should not however be assumed that eren within a mode of production that changes will be smooth or irreversible. It will be seen below that what appears to be a long term trend in England and Wales away from the use of imprisonment towards an increased use of the fine (see Bottoms 1983) has been halted and reversed since 1974. Rusche and Kirchheimer as well as discussing changes in punishment within capitalism also consider a longer historical time span. The basic theme in their work is the classical Marxist

330 approach according to the economy the dominant position. They argue that every system of production tends to discover and use punishments corresponding to its productive relationships. In the feudal Middle Ages, for example, when labour was plentiful and consequently the lives of the serfs of little value, punishment focussed around the infliction of physical pain. With the growth of Mercantilism in the late 16th century the demand for labour increased and hence it became a scarce resource to be preserved and not squandered. The criminal became an important source of labour. There was a steady demand for, and trade in, convicts for use as cannon fodder, and the new colonies of America and Australia relied heavily in their early days on convict labour. The prison became the dominant form of punishment during this period, immediately prior to the Industrial Revolution, characterised by acute labour shortages, and prison industries became extremely profitable. In Europe this labour shortage ended with the Industrial Revolution but continued somewhat longer in the colonies. Finally however labour surpluses became a general phenomenon and with declining profitability there was fiscal pressure in the 19th century to decrease the size of prison populations. So in this relatively short period of time prior to the Industrial Revolution the function of the prison may be related directly to the needs of the economy in that labour was forced to work on specific projects to overcome labour shortages. The prison served as a means of ensuring a supply of labour. Since then there has been less of a general shortage of labour but rather a shortfall in skilled rather than unskilled workers. Hence since the late 19th century the problem has been one of a surplus of labour. In an attempt to maintain a direct link between the economy and imprisonment, Quinney (1977) and Jankovic (1977) have suggested that prison acts as a way of reducing the size of the reserve army of labour. The total number of the unemployed is kept small by imprisoning them. Apart from the problem of showing that it is actually the unemployed who are being imprisoned this view is cleafly untenable when faced with data which show the numbers unemployed in England and Wales many times greater than the numbers imprisoned. This deterministic approach suffers by seeing the prison as existing to remove people from circulation and ignoring the ideological importance of the prison for social control. Crises, of which high levels of unemployment are one manifestation, involve the totality of capitalist social relations. Therelore the solution to these crises is a complex economic, political and ideological process. As Braithwaite (1981) puts it •.. during a period of economic crisis the hegemony of capitalist ideology fosters a search for alternatives to the failure of the system as an explanation for the crisis. An explanation which makes eminent sense to everyone is to blame the victims of the crisis for the crisis.

331 I will return to this theme again below where I will show that the monetarist solutions adopted in Great Britain to ensure the restructuring and increased competitiveness of the economy have precluded the major alternative solution to the problem which is increased welfare expenditure. Indeed the modern welfare state is seen by the radical right as part of the problem and consequently it is perhaps hardly surprising that when the solution to the crisis involves both an actual and ideological attack upon welfare that imprisonment increases. Rusche and Kirchheimer also use the concept of"least eligibility" to examine variations in the use of imprisonment within the capitalist system. Again this functions in relationship to the labour market. It argues that the standard of living for those in prison or dependent upon the welfare system must be lower than for those in work to ensure that people do not opt out of work and so that imprisonment continues to opt as deterrent. Most empirical work basing itself within this radical framework has examined the relationship between unemployment and imprisonment. While rejecting the mechanistic connection suggested by Quinney and Jankovic, it is nevertheless possible to argue that in times of economic crisis, typified by rising levels of unemployment, imprisonment does serve an important social control function as a constant reminder to those not in work of the consequences of stepping out of line. This approach has however been criticised on functionalist grounds and for verging on the edge of suggesting a conspiracy between Government and judiciary. I will return to a consideration of the linkages between unemployment and imprisonment below. Evidence for an association between them has been presented in various studies for several countries (as well as those already cited see inter alia Braithwaite 1980; Inverarity and Grattet 1987; Inverarity and McCarthy 1988; Laffargue and Godefroy 1987; Montgomery 1985) and has been most strongly supported by time series data analyzed using some variant of least squares regression. The advantage of this method of analysis is that it is a multivariate technique which enables the relationship between unemployment and imprisonment to be examined after controlling for other factors, e.g., crime levels, numbers of convictions, age structure of the population, which might affect the rate of incarceration. It is therefore more robust to criticism than simple bivariate techniques. The results in the various papers of Box and Hale and Hale alone showed that for post- war England and Wales, unemployment and imprisonment were positively related after allowing for variations in other factors. The disadvantage of the use of regression is that seduces its users into utilizing a language of causality which may not always be appropriate. For example ù . after controlling for other relevant factors, an increase of 1000 in the

332 number of unemployed will lead on the average, to ten more people receiving prison sentences. (Box and Hale 1982: 28) or again, It amounts to saying that a yearly increase of LIre 100 (1938) per capita in the national income would be associated with a decrease of 16 prison admissions per 100,000 population. (Melossi 1985: 176) The problem with statements of this kind is while they have an immediate impact they may cause the unwary to ignore the complexity of the relationship and the mediations involved. The danger is that we may come to take our own statistical modelling too seriously. I believe that while we should utilise the techniques since they are useful shorthand methods which enable us to summarise complex empirical connections between variables but be careful not to overburden our results with the language of causal necessity. I am concerned in particular that our models should not be taken to imply, for example, that the recent decline in unemployment in England and Wales will lead to reductions in the numbers imprisoned after taking crime rates into account. Most importantly we should recognise that unemployment itself is an indicator of underlying economic problems. How a state chooses to deal with the crisis will have important implications for its social policies in general. I would prefer when discussing our regression results a simpler statement that, on average, after controlling for other relevant variables, rising levels of unemployment have been associated with increased use of imprisonment. Why this should have happened is the question to be tackled. The final model reported in Hale (1988) is reproduced in Table i as model A. The model was chosen as the best from several alternatives considered and passed several specification tests the full details of which may be found in the original paper. For the purposes of this paper I wish to consider the possibility that the relationship between imprisonment and unemployment altered in 1974, the significance of which will be discussed below. In order to consider this possibility two tests of parameter constancy between the periods 19531973 and 1974-1984 were computed, the forecast chi square and the Chow test. The results for fitting the model to both sub-periods are also given in Table 1. For both tests the implication in clear: there is no evidence to suggest that the model has changed between the two sub-periods. Hence this may be taken as further evidence in support of the impact of unemployment upon imprisonment. Looking at the estimated coefficient and standard error of the unemployment variable in the three equations, we see that while the estimated coefficient is similar in size in each case, it is statisticaUy significant when using the whole sample period or the data from 1974 onwards but statistically

333 insignificant when the model is fitted using the data up to 1973. The relationship between unemployment and imprisonment has remained steady in the post war period but has intensified since 1974. We will see in the next section that 1974 is a turning point for other trends in sentencing practice in England and Wales.

Table 1. Results from modelling admissions using differenced rates variables. MODEL A: 1953-1984 Variable Estimate 0.0089 0.103 DO t - 0.0041 R 2= 0.463 (Unadjusted for mean) Residual sum of squares = 7498 DU t

DCt

MODEL B: 1953--1973 Variable Estimate DUt 0.0077 DCt 0.139 DOt - 0.014 R 2 = 0.423 (Unadjusted for mean) Residual sum of squares = 5835 MODEL C: 1974-1984 Variable Estimate

Standard error

t-ratio

0.0043 0.031 0.0042

2.610 3.351 - 0.977

Standard error

t-ratio

0.0084 0.042 0.008

0.918 3.305 - 1.674

Standard error

t-ratio

0.0084 0.0023 DCt 0.043 0.034 DOE 0.0019 0.0032 R 2= 0.812 (Unadjusted for mean) Residual sum of squares = 726 Tests for Parameter constancy over 1974-1984 Chow test F(11,18) = 0.47 (critical value 5% = 2.37) Forecast Chi-square = 0.99 (critical value for 11 d.f. 5% = 19.68) DU t

3.603 1.265 0.585

The data used in this paper are identical to those in Box and Hale (1984) where a complete summary of definitions and sources may be found. They refer to the male population in England and Wales between the ages of 15 and 65. The notation Used is as follows: At equals the number per 100,000 population given custodial sentences upon conviction (except those given suspended sentences) in period t. - Ct equals the number per 100,000 population convicted in period t. - U~ equals the annual average number per 100,000 population registered as unemployed in period t. - Ot equals indictable offenses per 100,000 population recorded by the Police in period t. - D is the difference operator i.e. D X t = X t - Xt- 1. -

334 Trends in the use of punishment in England and Wales

Imprisonment has a central position in the Criminal Justice System of the United Kingdom. On the 6 September 1986 the Prison population of the United Kingdom was 53,971 or 95.3 per 100,000 of the population. In terms of absolute numbers it had a higher prison population than every other member state of the Council of Europe. Only Austria with 102.5 per 100,000 population and Turkey with 102.3 had higher proportions of their population in prison. By the same date in 1987 the gap between the United Kingdom and these front runners had narrowed slightly with the Austrian figure falling to 97.5, Turkey's to 99.4 and the U.K.'s rising slightly to 95.8. (Council of Europe 1987; see also N A C R O Briefing 1987). By 1987 as a proportion of its population Britain had 13 per cent more people in jail than West Germany, 36 per cent more than Spain, 134 per cent more than Greece and 159 per cent more than the Netherlands (NACRO Briefing 1988). In terms of the major states of the Council of Europe i.e., those with a population of 10 million or more the United Kingdom imprisons more people both in absolute numbers and relative to its population than any other. A similar picture emerges when prison admissions are considered. In 1986 the United Kingdom imprisoned 347.9 per 100,000 population the highest for any major member state of the Council of Europe (i.e., population greater than 10 million). Only Denmark and Norway have a higher rate of imprisonment and this reflects their use of short sentences. The average size of the Prison Population has been increasing steadily since the Second Wodd War. In 1948 it was 19,765, by 1968 it was 32,461 and by 1986 the number was 46,770 of which 1,607 were female. Much of this increase might be attributable to increases in crime rates which have risen even more dramatically over the same period from 522,684 Indictable Crimes recorded by the Police in 1948, to 1,407,774 in 1968 and by 1986 3,847,410. While it does not necessarily foUow that increases in crime accompanied by increased numbers of convictions necessarily entails more people being incarcerated, if we wish to discuss changes in punishment it is perhaps more helpful to look at the percentage of those found guilty receiving different types of sentence. Until 1974 in England and Wales the probability of receiving a custodial sentence upon conviction had been declining steadily. Bottoms (1983) examines data from 1938, 1959 and 1980 and shows that for all adult indictable offenders the percentage of custodial sentences drops from 33.3 in 1938 to 29.1 in 1959 to 14.8 in 1980. The penalty which had the greatest proportional increase over this period was the fine, roughly doubling in its proportionate use from 27 per cent to 53 per cent while probation also declined from 15 proeent of all sentences to 7 per cent (Bottoms op. cit. Table 8.1). Since Bottoms wrote his essay however this trend has gone into reverse, as he

335

himself reports in a later work (Bottoms 1987), and as can be seen from the figures given in Table 2. The downward trend in the proportionate use of imprisonment which had begun in the early 1950s halted in the mid 70s. In fact the turning point can be located quite clearly in 1974. In that year the porportion of convicted adult males given a custodial sentence had reached a low of 15 per cent. Subsequently this figure began to steadily increase and by 1986, the latest year for which figures are available, it was 21 per cent. (The corresponding figures for adult females were 2 per cent and 6 per cent and again 1974 marked the low point in the proportionate use of imprisonment.) Over the same period there was an accompanying shift away from the use of fines. By 1974 they were used in 56 per cent of guilty cases for adult males but subsequently their proportionate use declined and by 1986 the figure was 41 per cent. In other words between Table 2. Sentencing trends (%) in England and Wales for adult male indictable offenders 1968-1986. Prison*

Prob.

Fines

CSO

SS

Disch

Other

1968 1969 1970 1971 1972 1973

18 18 19 19 18 16

7 7 6 7 7 7

48 49 50 51 52 55

-

17 16 15 14 14 12

8 9 8 9 9 9

1 1 1 1 1 2

1974 1975 1976 1977 1978

15 16 16 17 17

6 6 5 5 4

56 55 53 55 54

1 2 2 3

12 13 13 13 12

9 9 9 8 7

1 1 1 1 1

1979 1980 1981 1982 1983 1984 1985 1986

17 17 18 19 20 20 21 21

5 5 6 6 6 7 7 7

54 52 49 47 47 45 43 41

3 4 5 6 7 7 7 7

12 12 12 12 11 11 12 12

7 7 8 8 9 9 9 10

1 1 1 1 1 2 1 1

* Includes PartiaUy Suspended Sentences after 1982. CSO = Community Service Order. SS = Suspended Sentence.

The figures for 1977 and subsequent years are not strictly comparable with those earlier due to alterations in the definition of indictable offences and the introduction of new eounting proeedure. These changes dit/not affect the underlying trend.

336 1974 and 1986 there had been a 28 per cent reduction in the proportionate use of fines and a corresponding 23.3 per cent increase in the use of imprisonment. What is also clear from Table 2 is that these changes were most pronounced after 1979. Since 1974 not only have the absolute numbers being sent to prison increased but the courts have become more punitive in the sense that they are sending a higher proportion of those convicted to prison. Since their election victory in 1979 the Tories have followed a two pronged penal policy. While exhorting the judiciary to use custodial sentences only for the really wicked who commit serious offences they have refused to comproreise the supposed independence of the judiciary by interfering directly in the judicial process. Instead they have embarked upon the biggest programme of prison building this century. In the recent statement on government expenditure they announced that the Home Office was to receive yet another increase in money to enable it build two extra prisons, set up 30 day centres for parole on probation, recruit 300 more police officers in provincial forces, employ an additional 1,300 civilians in the police forces and make the Immigration and Nationality department more efficient. The Day centres are clearly part of a campaign to make probation a "tougher" option for the courts. The two new prisons were in addition to the eight new ortes opened since 1985 and another 18 at various stages of completion. The two new prisons will bring the total of new places available by 1991 to 10,000 and the programme will provide 20,000 new places in all by the mid 1990s. Prior to the announcement of the additional two it had been estimated that the total capital cost of the 26 new prisons would be £ 870 million at an average cost per place of £ 69,200. The Government has also increased the manpower in the prison service. Between 1982 and 1987 the average annual prison officer numbers have increased by around 12 per cent per annum. The long term trend has been to reduce the number of inmates per Officer. Forty years ago there were about for each officer there were six inmates. In 1986-87 there were approximately two and a half inmates to one officer. The principle of least eligibility, notwithstanding the massive prison building programme, seems to operating with some vengeance. By the end of 1987 the certified normal occupation (CNA) of the prison system had reached 42,500. The average prison population of 49,000 thus exceeded CNA by 6,500 representing average overcrowding of 15.3 per cent. The situation is partieularly acute in remand centres and local prisons. There are 28 local prisons in England and Wales and they house over one-third of the prison population. They are used to hold the least dangerous categories of prisoner, including those waiting to be tried or sentenced (remand prisoners), fine defaulters, those serving short sentences and prisoners awaiting reallocation to Training Prisons. Table 3 shows the extent of overcrowding in the ten worst local prisons. Many of the prisoners are locked up in their cells for most of the 24

337 Table 3.

Prison overcrowding:the ten worst prisons on 31/3/88.

Leeds Bedford Leicester Lincoln Birmingham Reading Shrewsbury Oxford Dorchester Manchester

CNA

Population

(%) Overcrowded

642 155 204 359 575 178 174 127 139 970

1345 325 416 716 1134 345 312 226 248 1691

110 110 104 99 97 79 78 78 78 74

CNA Certified Normal Accommodation

hours in the day. The problem of remand prisoners, is particularly acute. On 30 April 1988 10,512 prisoners were awaiting trial or sentence in penal establishments. This constituted 22 per cent of the total prison population. In addition a further 1,115 prisoners, most of whom will have been on remand, were held in police or court cells. If 1986 is anything to go by only 60 per cent of these prisoners will eventually receive custodial sentences. Perhaps the simplest way to conclude this section is to quote the words of H e r Majesty's Chief Inspector of Prisons who wrote in bis annual report for 1986: The physical conditions in which many prisoners had to live continued, therefore, in many cases, to border on the intolerable. For remand prisoners in particular, whose numbers increased sharply during the year, conditions were particularly poor. Overcrowding, coupled with the lack of in-cell sanitation and the sharing of limited and inadequate facilities on landings, represented much human misery. Many inmates in the local prisons spent almost all day locked up, two or three men to a cell intended for one, with no integral sanitation and little to do.

The British economy since 1945

In order to understand the recent changes in the penal sphere it is necessary to consider the post war history of the economy in Britain since the crisis of hegemony in the seventies occurred precisely because of the failure of earlier attempts to achieve the restructuring required by capital within a Keynesian welfare oriented framework. The identification of the Labour party and the Trade Unions with the failure of this corporatist approach was used by the

338 radical right which had gained influence within the Tory party in the 1970s to launch an attack on the consensus approach to economic and social problems which had developed since 1945. In this paper I can only sketch the post-war economic developments in Britain. The work had benefitted from the discussions to be found in the journal of the Conference of Socialist Economists, Capital and Class and in particular from reading Atkins (1986), Gamble (1982), Grahl (1983), Hymans (1987) and McDonnell (1978). Another useful, if more sympathetic, source of information on the economic performance under Mrs. Thatcher may be found in Maynard (1988). The major economic crises of the 1920s and 1930s resulted in greatly increased intervention by the state in the economy and the adoption of Keynesianism in an attempt to reconcile the interests of capital and labour. Through taxation and government borrowing the state actively intervened in the economy to encourage economic growth by keeping consumption high. The Labour government of 1945-51 was committed to full employment and improved living conditions for the working class. There was an increase in state involvement in social policy, an expansion of welfare benefits and the establishment of the National Health Service. The Tory governments of the 1950s accepted this "welfarism" and it became part of the consensus of British political life. The parties might argue over the details of policy but the commitment to the welfare state itself was not in question. The Trade Unions had cooperated closely with the Labour government and the Tories avoided any confrontation with them. Indeed McDonnell (1978) argues that "Working class demands were allowed to become the motor of capitalist development. Wage rises were permitted with productivity increases and rises beyond them were covered with mild inflation." During this period, under the Tories, economic policy followed cycles of contractions followed by expansion. Because of the strength of the working class the Government attempted to control wages by a succession of incomes policies, each of which met with only limited success. Economic policy at this time consisted, according to McDonnell, (op. cit.) "of reactions to the consequences of the underlying problems of the economy (balance of payments deflcits, currency crises) without any real attempt to tackle these problems (low investment, low productivity)". The end of the 1950s saw a faltering in the post war expansion of the British economy. This was due in part to the independence, and subsequent actions to defend their interests, of many third world countries and also to the rapid expansion of the Japanese and German economies. However the main reason was the strength of the Trade Unions, and in particular the shop stewards movement, which were able to keep wage bargaining and other negotiations at the plant level, and so prevent employers from keeping down wage costs. It became clear that the economic boom had been maintained by an expansion of credit which had protected inefficient firms. What was required was a radical

339 restructuring of the economy. However the commitment to full employment and the strong working class organizations made this difficult if not impossible. Instead the trend towards corporatism was intensified and the solution to the problem sought through the institutionalization of class conflict and a massive increase in state apparatuses. The Labour Government elected in 1964 oversaw a proliferation of new state structures and the inclusion of the Trade Unions in the process of economic and state planning. Following the balance of payments crisis of 1965-66 the full employment policy was abandoned and replaced by incomes policy, sterling devaluation and industrial rationalizations. Employers attempted to force increase in productivity, wage cuts and rising unemployment on the workers. The end of the 1960s saw a major upsurge of mainly unofficial strikes and the incomes policy was finally broken in 1969. This resistance to forced cuts in living standards led to poor industrial relations being perceived as the root of the British problem. The Tory government elected in 1970 was committed to a radical programme of economic reform which foreshadowed what was to come in 1979. Committed at the start to the desirability of free market forces it abandoned the interventionist strategy and began to dismantle the stare bureaucracy. Economic crises were to be allowed to force "lame duck" firms into bankruptcy. Incomes policy was renounced as unemployment and strict control of public sector expenditure were to ensure wage restraint. The Industrial Relations Act was passed to place legal restraints on the power of the unions in an attempt to alter the balance of class forces. However a number of bankruptcies of major companies such as Rolls Royce and the Upper Clyde Shipbuilders forced the Tories to abandon their non-interventionist stance and strong working class resistance to the Industrial Relations Act meant it was rarely applied. The abandonment of this radical approach led to the crises of profitability between 1972 and 1974 again being tackled by statutory incomes policies and familiar Keynesian measures to raise total demand by increasing stare expenditure or hold down costs by cutting taxation. These measures failed and led to a growing state budget deficit and the fiscal crisis of the mid 1970s. There were increasing tensions in industrial relations with numerous strikes culminating in the Miners's strike of 1974 which contributed to the Tories defeat in the General Election of the same year. Initially the new Labour Government reasserted its interventionist strategy. It repealed the Industrial Relations Act and, since the experience of the previous administration had shown that a statutory incomes policy was unlikely to be successful against the wishes of the Trade Unions, it negotiated a voluntary agreement, the "social contract", with them. To create a suitable climate for this the March 1984 Budget included several measures advocated by the Trades Union Congress including subsidies on housing and food and increased welfare and pension payments. By the end of the year however the government was announcing limits on planned in-

340 creases in public expenditure and, as it became clear that the Social Contract was failing, in 1975 they launched a major campaign, aided by the press, to set definite limit on wage increases. Meanwhile in his Budget speech in March 1975 Denis Healey argued that high unemployment was part of the price to be paid for high levels of inflation. As the incomes policy creaked the Government began to rely on restricting the money supply and cutting public expenditure in the hope that tight monetary policy linked to increasing unemployment would produce wage restraint. By 1976 following yet another series of sterling crises and the visit of officials from the International Monetary Fund major cuts in public expenditure were announced in February, July and December. At the same time a major ideological campaign against state expenditure was launched by the Labour Government. While they were at this time abandoning commitments to welfarism supposedly under the pressure of the IMF, the Tory Party and nearly all the national press were ahead of them. If for the Labour party monetarism was presented as a pragmatic necessity for the Tories it became part of an ideology. They had adopted a thorough going monetarist position in which the huge government borrowing requirement and the subsequent increases in the money supply were the major problems. To quote from their 1979 manifesto: To master inflation, proper monetary discipline is essential with publicly stated targets for the rate of growth of the money supply. At the same time a gradual reduction in the size of the Government's borrowing requirement is also vital... The State takes too much of the Nation's; its share must be steadily reduced. When it spends and borrows too much, taxes, interest rates, prices and unemployment rise so that in the long run there is less wealth with which to improve our standard of living. (Conservative Party Manifesto 1979: 8) Massive cuts in state expenditure were, they argued the only answer to the crisis. In addition state welfare expenditure was seen as stifling individual initiative individual enterprise and as holding back industrial investment and exports. Whether or not in practice the Tories ever had strict monetary policy or indeed the previous Labour administration had been anything other than competent in its is at least debatable. At the level of policy or ideology however it is crucial since in the words of Gamble (op. cit. p 15), " . . . monetarism represents an attempts to legitimate the abandonment of responsibility for levels of unemployment and rates of economic growth and to protect the essentials of market o r d e r . . . " In its first years in power the Tories were faced with a massive deepening of the world recession. By 1981 industrial production was 12 per cent below the 1979 level itself a marginal recovery from the 1975 slump. The doubling of the oil price and sterling's role as a petro-

341 currency had led to massive rise in the exchange rate between 1979 and 1980 resulting in a 30 per cent decline in international competitiveness. Unemployment in England and Wales leapt from a daily average of 1.4 million in 1979 to 2.3 million in 1981. Ironically of course this led to an immediate increase in welfare payments an increase in Government expenditure and borrowing. With hindsight the depth of the recession was a bonus for the Tories since the shakeout of labour led to a weakening of the unions and a sharp reduction in strikes and pay claims. In many ways the key to the subsequent economic success has been their industrial relations strategy which had the simple aim of breaking the power of the unions. The Employment Acts of 1980 and 1982 and the Trade Union Act of 1984 substantially restricted the legal possibilities for collective action by Trade Unions. The 1980 Act introduced the use of secret ballots prior to strike action, and restricted immunity for secondary industrial action, such as the blacking of goods and sympathy strikes. A Code of Practice introduced at the same recommended that picketing be restricted to on or the workplace and that a maximum of six people was consistent with peaceful picketing. The 1982 Act placed Union funds at risk by allowing Unions as weil as their officials to be sued for damages where they were responsible for "unlawful action". Since it also restricted the definition of a lawful trade dispute to those between workers and their own employers it meant that any supportive action was likely to place union funds in jeopardy. Finally the 1984 Act laid down that legal immunities fro strike action could only be maintained if supported by a majority of the unions members in a secret baUot held not more than four weeks prior to its commencement. So the years 1974-76 marked a watershed in the postwar Keynesian welfarist consensus in the United Kingdom. The Labour Government embraced monetarism and implicitly by so doing abandoned any commitment to maintaining full employment. It pursued reductions in public expenditure which were to make it difficult for the following Tory administration to find easy targets for cuts. More importantly it laid the ideological foundation for the so called Thatcherite revolution• By involving the Unions in the decision making procedure they contributing to the weakening of their strength within the working class. The Unions and Labour became identified with the existence of an overbearing State bureaucracy which stifled individual initiative and encouraged moral decline through the welfare system. For the Tory Party a central feature of this monetarist approach was an attack on the welfare state. Gough (1983) argues that this is for two reasons. Firstly • . it allegedly generates even higher tax levels budget deficits, disincentives to work and save, and a bloated class of unproductive workers. Second because it encourages "soft" attitudes crime, immigrants, the idle, the feckless, strikers, the sexually aberrant and so forth.

342 Again by undermining the welfare system the power of trade unions is attacked: one of its first measures in the 1980 budget was to cut the amount of welfare benefits to which families of strikers were entitled. And in addition it reaffirmed the virtues of self-reliance, individualism, family and personal responsibility. Individuals must be encouraged to take responsibility for their own destiny and those who are unable to cope or who, are morally deficient should not expect sympathy. In this populist ideology generous welfare provisions and soft criminal justice policies are entwined in their detrimental effect upon morality and responsible for the increasing crime problem. I shall discuss the implication of this ideology for the use of imprisonment in the next section.

Ideology, imprisonment and recession Melossi (1985) discusses how social discourses change with the various stages of what he calls the political business cycle. In the upswing this discourse is characterised by energy and hectic frenzy. As he notes they are " . . . not a time for punishment". Melossi discusses the "roaring twenties" and notes that "an attitude of leniency, indulgence and experimentation with newer methods and reforms permeated the whole society". His description would weil apply to the sixties in the U.K., with the proviso perhaps that social changes lagged behind the business cycle somewhat. The sixties however certainly marked the end of the era of post-war austerity and a time when the belief that the state could solve most economic problems was strong. It was a period when the newly (re)found sense of idealism and hope led to great expectations of the rehabilitative force of prison and its alternatives. Hudson (1985, 1986) has catalogued how the reforming penal language of the sixties became replaced with that of justice and punishment during the seventies. Here I will consider the reasons for this change in language and consider how Melossi's "vocabulary of motives" helps us to understand changes in England and Wales since 1974. For Melossi its the discourses which count: For this reason in the downswing of the cycle, the sources for an increase in severity of punishment should not be sought either in specific "economic" functions, such as the control of an increasing mass of the unemployed, or in specific motives of individual agents of social control, such as the common belief that unemployment causes crime. Although such motives can be found in individuals, they like the punishment rate itself, are associated with the general "moral climate" that develops in hard times. (Melossi, op. cit. p. 183) Melossi argues that earlier attempts by Box and Hale to use an argument based

343 upon the "unintended consequences of purposive social action" are limited. In this section I review this argument and develop it using the work of Box (1987). I believe that the argument is strengthen by linking it to Melossi's "discursive chain of discourse" and by showing how this discourse changed in the 1970s. The climate which developed in this period in Britain was one in which the prejudices of the judiciary were reinforced by a media campaign supportive of the Tory Party's ideas on moral decay and over-dependence upon the state. It is no coincidence that 1974, the year in England and Wales which saw the end of the decline the proportionate use of imprisonment, and the beginning of a mai or economic crisis during which the numbers of male unemployed more than doubled by 1976 and increased by a factor of 5 by 1984, also marked the beginning of the end of the welfarist consensus. As I discussed above the Labour Party responded to the economic crisis with a programme of public expenditure cuts. At the same time it launched an ideological offensive launched to justify this approach to solving the crisis. This offensive had other faces and one of the major targets of the media was the power of the unions which had been used to protect, more or less successfully, the interests of the workers and to maintain the welfare state. The celebrations surrounding the 25th anniversary of the accession of the Queen were used as means of playing down class differences and uniting the country around slogans like "coats oft for Britain". At the same time a campaign against welfare scroungers was launched to make unemployment financially and socially undesirable. Law and Order became increasingly to be used as symbol for the moral and economic decay of the country and this was reinforced by the use of the latent racism of the working class in the publicity given to muggers which was presented at lease implicitly as a black crime (see Hall et al.). The popular press was also to play the racist card in attacks on the social security system with lurid reports of Asian families staying in luxury hotels on welfare payments. Perhaps most crucial however was the transformation of Trade Unionists from harmless cart-horses into mindless, vicious thugs. The problem for the Labour Party of course was that playing this propaganda card was always likely to backfire since its natural constituency should have been the very groups it was attacking. The Tory Party meanwhile had no such problems. It was able to give voice to the fears of many concerning the supposed breakdown in moral standards, they equated economic decline with moral weakness and established hegemonic control by focussing on the breakdown of law and order. This struck a chord with the electorate and Mrs. Thatcher correctly predicted the importance the issue would take: People ask me whether I am going to make crime an issue at the next election. The answer is no. It is the people of Britain who are going to make

344 it an issue. (Margaret Thatcher, Conservative Party Annual Conference 1977) The Tory party had clear mission which was to break the power of the unions and the way that it did this was by using the law. It successfully portrayed itself as having the solution to Britain's economic problems which it saw as being due to too much state intervention in every sphere and to the dependence mentality which this produced. It committed itself to a radical restructuring of the British economy at the expense of the working class and integral to this programme was an attack on trade union "power" and the dismantling of the welfare state. Again the "Law and Order" question was seen as been critical here. In their muddled but different ways, the vandals on the picket lines and the muggers on the streets have got the same confused message - "we want our demands met else" and "get out of the way, give us your handbag". (Margaret Thatcher 1979) This linking of Union power with a breakdown in Law and Order was to be a recurring theme in the Tory propaganda. They were able to portray the Trade Unions and by implication the Labour Party as having no respect for the rule of law. A Trade Union leader had advised his members to carry on picketing because they would aet in such numbers that the authorities would need to use football stadiums as detention centres. That is the rule of the mob and not of the law, and ought to be condemned by every institution and minister in the land. The demand in this country will be for two things: less tax and more law and order. (Margaret Thatcher, Daily Telegraph 29 March 1979) As Downes (1983) notes this statement is able to link together several themes. The period prior to the 1979 election was one of acute crisis in the United Kingdom with labour disputes - Premier Callaghan's winter of discontenteconomic chaos and a general feeling of malaise. The Tory Party was able to present a coherent framework in which to tackle problems in both the economy and social life. The debate as they defined it had recurring themes: welfare scroungers, stand on your own two feet, the need to break the dependency culture, trade unions operating outside the law, moral decline, personal discipline and personal responsibility. They were able to create a situation in which the collectivist welfarist society was seen as being part of the problem of moral decline. The social security scrounger joined the pantheon of Tory

345 bogeys along with industrial pickets, muggers, single parent families and gays. In this climate the "crime problem" was seized upon as a symbol of great potency. Taylor (1987) has argued that the Tories were aided in this by •.. organisations of people carrying out crucial authority functions within the English Bourgeois state: in particular, local magistrates, local police chiefs, police federation representatives and senior traditional schoolmasters... (Taylor op. cit. p. 312.) In the early years of the seventies each of these groups was involved through their professional organisations in a campaign against what they saw as the damaging consequences of the sicties liberalism. The Magistrates Association mounted a successful campaign against the 1969 Children and Young Persons Act which sought to replace courtroom hearings for young people with "welrare dispositions". The National Association of Schoolmasters (NAS) concentrated upon attacking the comprehensive school system and importantly, was involved in public campaigns around the level of violence in schools (Taylor op. cit. p312). The violent, dangerous and delinquent youth of the magistrates and NAS were also present in the statements of individual Chief Constables and representatives of the Police Federation who articulated publicly their own theories on the causes of crime in manner which would have been thought unthinkable a few years previously. A flavour of this approach may be gained from a quote from a speech of Lastly Mate, Chairman of the Police Federation, in 1976 attacking some teachers and social workers: These included teachers who are so indoctrinated with their alien political creed that they convince kids "that it's all the fault of the system" and " . . . social workers who turn a blind eye, sometimes connive at offences committed by children in their care". (quoted in Taylor op. cit. p. 313) The parameters of this debate as set out in these campaigns were seized upon by the Tory party with little or no response from the Labour party who seemed unable to cope with the autoritarian drin. "Law and Order", "Respect for the Law", "moral degeneracy", "the burgeoning crime levels" became the catch phrases of the moment• What was needed of course a return to discipline both at work and in society. Since industrial anarchy was nothing other than the other side of the coin of the rapidly rising crime levels both would be defeated by tough measures which would restore to the citizen a feeling of security and freedom. Furthermore the welfare state had encouraged moral decline and negated individual responsibility for individual actions. The growing army of unemployed was the consequence of years of Trade Union power and re-

346 strictive practices and the first step in the restructuring of the economy would be to criminalise many of the traditional weapons used by the working class to defend their interest. The most disturbing threat to our freedom and security is the growing disrespect for the rule of law. In government as in opposition Labour have undermined it. (Conservative Party Manifesto 1979) The number of crimes in England and Wales is nearly half as much again as it was in 1973. The next Conservative Government will spend more on fighting crime even while we economise elsewhere. (Conservative Party Manifesto 1979) The Conservatives won the 1979 election at least in part on a law and order programme. An Independent 'Television News Research survey reported on elecfion night after the closure of the polls indicated that 23 per cent of voters who switched allegiance did so on Law and Order and that 22 per cent were concerned with the role of Trade Unions. As Clarke and Taylor (1980) and Clarke et al. (1982) show the coverage of the Law and Order issue by the media was dominated by the agenda set out by the Tory party aided by the magistracy, the NAS and certain sections of the police• In the words of Brake and Hale (1989) In the General Election of 1979 the Tory Party correctly identified "law and order" as the crystallization of a range of social anxieties, and successfully distinguished itself from the other political parties as alone having solutions to them. It paid particular attention to industrial relations, public order and street crimes, isolating in particular, young black men as the sources and inner cities as the sites of danger. The mugger on the street became symbolic of the general moral and economic decline of the nation. We find then in the discourses of crucial sectors of the bourgeoisie in this period precisely that change in the general moral climate described by Melossi: •.. in periods of economic decline, a "discursive chain" of punitiveness and severity spreads across society... (Melossi, op cit. p. 183) Central to their economic strategy was a commitment to reduce public expenditure (except for the law and order budget) and the breaking of the power of the Trade Unions. The two were of course linked. Strong Trade Unions especially in the public sector had as I have discussed above successfuUy resisted attacks on the welfare stare and in the past and so needed to be

347 defeated if the Tories solution to what they saw as the major problem inflation was to be successful. At the same time the huge increases in unemployment, which were the corollary of the expenditure cuts and non-interventionist market oriented economic policy, undermined the resistance and the strength of the Unions. It was within this ideological framework which was always present but as outlined above became to be more and more publicly articulated by the Tories prior to 1979 that the operations of the justice system in England and Wales need to be considered. The Courts have responded to perceived growing crime rates during this period by increasing the use of prison sentences and reducing the use of non-supervisory sentences such as fines or unconditional discharges. The outcome of has been the imposition of more sentences at the higher end of the punishment tariff over and above the changes in the volume of crime. As Box and Hale op cit. have argued this response is not merely a mechanical response due to the increased work-load but is due to sufficiently large proportion of judge and magistrates responding to deteriorating economic conditions by resorting more frequently to the use of imprisonment. This is made easier by the shift in the ideological climate discussed above, since to be too soft on those convicted would be to prolong the permissive trend which had led to the high crime levels and the chronic economic problems. The judiciary and magistrates are of course drawn predominantly from the middle and upper classes (see Box (1987) p134-135) and as such can be expected to reflect the beliefs and prejudices of their class. Their natural constituency is "conservative" and especially the preservation of private property. Consequently rises in the level of unemployment is likely to be source of deep anxiety to them since they believe that the unemployed are weak and amoral and therefore more likely to be criminal. Add to this their desire to protect private property and to end the moral decline which has crippled the country and a potent brew is produced. As Box (1987) p135 argues when this is combined with the "knowledge" that "crime is getting worse" and that "fear of crime" is becoming a major social problem- messages that politicians, via the mediacommunicate- then the judiciary are bound to become more sensitised to the dangers that lurk in high levels of unemployment. Hence we do not need to argue that the judiciary are in any sense part of a gigantic conspiracy, they merely act according to their beliefs which inevitably reflect their class interests. Furthermore as Box succinctly puts it given the "Constitutional Independence" (but political reliability) of the judiciary, there will be no concerted effort to prevent or curtail the steady drift towards more frequent use of severe penal sanctions whenever many •

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348

judges and magistrates react to their perceptions of growing or potential disruption resulting from the upsurge in the volume of unemployment and an intensification of class conflict in general.

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