Politics of Punishment

John Hostettler

Description

A classic work and a collector's item which looks at the genesis and purposes of punishment. Shows how punishment, power differences, social control and (sometimes suspect) economics and politics have always been intertwined. A must for practitioners and students in this field.

Sujets

• Sociologie, société et politique
• Legal history

Informations

• Publié par: Waterside Press
• Date de parution: 15 juin 2016
• Nombre de lectures: 0
• EAN13: 9781910979105
• Langue: English

Extrait

The Politics of Punishment
John Hostettler
Copyright and Publication Details
The Politics of Punishment
John Hostettler
ISBN 978-1-909976-33-7 (Paperback)
ISBN 978-1-910979-10-5 (Epub ebook)
ISBN 978-1-910979-11-2 (Adobe ebook)
Copyright © 1994, 2016 This work is the copyright of John Hostettler. All intellectual property and associated rights are hereby asserted and reserved by him in full compliance with UK, European and international law. No part of this book may be copied, reproduced, stored in any retrieval system or transmitted in any form or by any means, or in any language, including in hard copy or via the internet, without the prior written permission of the publishers to whom all such rights have been assigned worldwide.
Cover design © 2016 Waterside Press.
Main UK distributor Gardners Books, 1 Whittle Drive, Eastbourne, East Sussex, BN23 6QH . Tel: [phone]; [e-mail] ; www.gardners.com
North American distribution Ingram Book Company, One Ingram Blvd, La Vergne, TN 37086, USA. Tel: [phone]; [e-mail]
Cataloguing-In-Publication Data A catalogue record for this book can be obtained from the British Library.
Printed by Lightning Source.
e-book The Politics of Punishment is available as an ebook and also to subscribers of Myilibrary, Dawsonera, ebrary, and Ebscohost.
First edition published by Barry Rose Law Publishers Ltd in 1994.
This revised reprint published 2016 by
Waterside Press
Sherfield Gables
Sherfield-on-Loddon
Hook, Hampshire
United Kingdom RG27 0JG
Telephone [phone]
E-mail [e-mail]
Online catalogue WatersidePress.co.uk
Table of Contents
Copyright and Publication Details ii
About the author vi
Dedication vii
Tribute ix
Preface xi
Preface to the 1994 issue xxi
Abbreviations xxiii
From the reviews of the first issue xxv Anglo-Saxon England 27
Pagan to Christian 27
Vengeance to Compensation 29
The King’s Peace 31
Communal Courts 32
Oaths and Ordeals 34
Monarchy and Church 36 Saxon Dooms — Our Early Laws 39
Written Law 39
Powers of Crown and Church 41
Ine and Alfred the Great 42
Public Law 44
Ethelred “The Unready” 46
Poacher Turned Gamekeeper 48 New Ventures in the Criminal Law 51
William the Conqueror 51
Anarchy 54
Crown versus Church 55
The King’s Justice 58
Trial by Jury 62
Rise of the Legal Profession 64
Origin of Justices of the Peace 65
Persecution of the Lollards 66
Treason 68
Other Violent Punishments 69
Corruption to Stability 72 Royal Power 75
Political Control 75
Demons 78
Torture 80
The Star Chamber 83
Common Law Punishments 86 The Commonwealth 91
Penal Law Reform (1649-1660) 91 The Restoration 97
Significant Changes in the Criminal Law 97
The Popish Plot 100
Judge Jeffreys 104 Glorious Revolution to Repression 107
Changing Attitudes to Punishment 107
The Whig Supremacy 109
John Wilkes 111
Prisons 112
Beccaria’s Crusade 114
The Rights of Man 117
Trials of Radicals 119
Sir Samuel Romilly 120 Towards a Modern Society 123
Inspiration of Jeremy Bentham 123
Sir Robert Peel 128
Juvenile Offenders 130
1847 Select Committee 133
Government Failure 134 Century of Reform 137
The Crusade Against the Death Penalty 137
Secondary Punishments 141
The Hulks 142
Transportation 143
Imprisonment 145
The Rise of the Penitentiary 148
Garrotting 151
Deodands 152
Whipping 153 Criminal Incapacity 157
Liability 157
Infancy 158
Madness 159
The M’Naghten Rules 159
Intoxication 162
Necessity 163 A Century of Improvement 167
The Gladstone Report 167
Post-war Reform 170
Abolition of Hanging for Murder 174
A New Crime 175
Improvement 176 The Politics of Punishment 177
Theories of Punishment 177
The Perspective of History 181
Leniency in Punishment 184
Ethical Issues 187
Social Control? 190
Bibliography 193
Index 199
About the author
John Hostettler has written several biographies of eminent legal figures and works of legal history. He was a practising solicitor in London for 35 years as well as undertaking political and civil liberties cases in Nigeria, Germany and Aden. His books include: Twenty Famous Lawyers (2013); Dissenters, Radicals and Blasphemers: The Flame of Revolt that Shines Through English History (2012); Champions of the Rule of Law (2011); Sir William Garrow: His Life Times and Fight for Justice (2010) (with Richard Braby); Cesare Beccaria: The Genius of ‘On Crimes and Punishments’ (2010); The Criminal Jury Old and New: Jury Power from Early Times to the Present Day (2004); and Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain (1997) (with Brian P Block).
Dedication
To my wife Joy, with thanks for her patience and help
Tribute
I should like to take this opportunity to remember Barry Rose, known as “The Gentleman Publisher”, who first published this book in 1994. Barry was deeply involved in politics, locally in West Sussex and on the national scene, and he had a considerable knowledge of the law and its history. He would have been keenly aware of the close link between politics and the criminal law and, from what he told me, I believe he found this book on the politics of punishment of some importance. I treasure my memory of him in the legal world and would also like to express my thanks to his daughter, Diana, for having agreed to this re-issue of the book. My thanks also go to Bryan Gibson of Waterside Press for bringing it again to the light of day.
Preface
This new preface apart and one or two light touches in the text I have not sought to change the contents of this book since it was first issued in 1994. There have been significant changes in the law of punishments and allied criminal processes in the intervening years with the relationship between politics and law and order notably visible at times. So that although this book spans over a thousand years in which modern-day changes represent little more than the blink of an eye, brief mention should be made of these events.
Key Developments Since the Book was First Issued
A “ tough on crime” political agenda has been central to much that has happened since 1993. This began under the Tory government but received fresh impetus as “tough on crime, tough on the causes of crime” under New Labour from 1998 onwards. Whereas modern-day crime and politics had before that tended to function by convention at arm’s length, political parties began to outbid one another in pandering to the populist media concerning who could appear most punitive.
It has also been estimated that under New Labour some 3,000 new crimes were created (many regulatory and a proportion of these to reflect European obligations). Some would argue that this has made laws and responsibilities uncertain or even indiscernible (contrary to the principle that “everyone is deemed to know the law”). Whilst the Human Rights Act 1998 incorporated the European Convention On Human Rights into UK law, and with this fresh obligations on the state towards citizens concerning fairness, liberty, slavery, security, torture and punishment, on our own national or domestic front a number of long-standing and fundamental principles mentioned in this book were adapted, diminished or sacrificed.
I would rank what follows as being of most interest to students of politics and punishment and the contents of relevant chapters should be read accordingly, bearing in mind these and related developments. My wish not to “tinker’’ with the broader themes of the book means I must refer the reader elsewhere for details. Neither can I predict how important these changes will seem in another 20, let alone 100, years.
Nineteen-ninety-four saw a new Criminal Justice and Public Order Act creating secure training orders for juveniles, restrictions on bail in homicide, rape and other cases, and extensive changes to police powers especially in relation to terrorism (or acts deemed to be terrorism; as to which those parts of this book concerning the vague laws of “waging war against the king” spring to mind), trespass and powers to stop and to search people. The last of these became an issue in itself particularly in relation to the apparent discriminatory practice of the police in using these powers disproportionately against young black men.
The 1994 Act also dealt with cross- border powers somewhat ahead of the creation of a new UK Border Agency (later reconstituted as UK Visas and Immigration, Immigration Enforcement and a Border Force) that was to lie at the forefront of measures against international crime and terrorism, activities increasingly targeted particularly in the wake of the devastating attack on New York’s Twin Towers on September 11 2001 and the London Bombings of July 7 2005. International police and security services liaison and related exchanges of information have been a related feature, including through Interpol and Europol and practices in relation to arrest and extradition. Money laundering and financial crime have figured as both national and international law enforcement issues with extensive new potentially criminal responsibilities cast on banks, businesses, solicitors, accountants and others.
The Crime and Disorder Act 1998 set up a Youth Justice Board and youth offending teams in the vanguard of innovative methods for dealing with juveniles, especially first offenders, who were to be kept away from punishments per se for all but serious crimes using instead referral orders to local youth justice teams. But for older offenders and based on the USA model, the punitive Crime (Sentences) Act 1997 introduced “three strikes and you’re out”, i.e. imprisonment for repeat offending (“two strikes” in fact in England and Wales), all part of a political hardening of approach that was to see prisoner populations soar by over 20 per cent across the two decades after this book first appeared