Criminal Law Reform: Continental Europe

The radical intellectual renewal in eighteenth-century Europe known as the Enlightenment provided the cause of legal reform with its essential political and philosophical principles: the rule of law, reason, liberty, and humanitarianism. In France, Montesquieu advocated the separation of powers in order to preserve judicial independence from the executive; punishment was to correspond to the gravity of the offense. At the same time, Voltaire vigorously opposed capital punishment and demanded that criminal justice concentrate on the prevention rather than on the punishment of crime. The foundations of modern criminal policy were laid by Italian writer Cesare Beccaria (1738–1794) in his famous book Dei delitti e delle pene (1764). Like the French authors, Beccaria favored the abolition of the death penalty as well as corporal punishment, supported the principle of proportionality between crime and punishment, and insisted that prevention be the primary objective of criminal policy. Enlightened monarchs of the late eighteenth century—for example, Frederick II ("the Great") of Prussia, Joseph II and Leopold II of Austria, and Gustavus III of Sweden—introduced reform laws reflecting these ideas.

Early codification. At the beginning of the nineteenth century, a wave of codification of criminal law swept through Europe, led by the Criminal Code of Austria of 1803 and the French Code pénal of 1810. These codes, for the first time since the sixteenth century, aimed at providing comprehensive legislation on crimes and punishment based on the rationalistic ideas of the Enlightenment era. In the following decades, Bavaria (1813), Spain (1822), Greece (1834), Norway (1842), Prussia (1851), Portugal (1852), Sweden (1864), Belgium (1867), and the Netherlands (1881) adopted criminal codes, and after efforts at national unification were successful, the great codifications of Germany (1871) and Italy (1889) concluded the consolidation of criminal laws in continental Europe. The criminal codes of Poland (1932), Romania (1936), and Switzerland (1937) were late fruits of the codification movement. Some of these codes, since frequently amended, still constitute the basis of criminal law in their countries.

Penitentiary reform. Under the ancien regime, criminal sentences were often for corporal punishment, and the prisons that existed were infamous for the maltreatment of prisoners. The move toward a modern penitentiary system with the aim of reforming offenders began as early as in 1595 with the foundation of the Amsterdam penitentiary. In 1775 a prison providing individualized treatment for prisoners was opened in Ghent. In the nineteenth century, penitentiary reform was strongly influenced not only by the movement of the Enlightement but also by Anglo-American practices. Penology was a field of true internationalism. The first of a series of international prison conferences was held in 1846 in Frankfurt under the chairmanship of the liberal German jurist Carl J. A. Mittermaier, and in 1878 the International Penal and Penitentiary Commission was founded. In 1877 Charles Lucas and Bonneville de Marsagny established the Ecole Pénitentiaire in France, and at about the same time Eduard Ducpétiaux and Adolphe Prins reformed the penitentiary system in Belgium.

Reforms of the criminal law in the nineteenth century. The main goal of early reformers was the establishment of a rational system of criminal justice built mainly on the ideas of retribution and general deterrence. In the second half of the nineteenth century, the advances of natural sciences, the rise of psychology, anthropology, and sociology as new sciences, and the advent of philosophical positivism led to a change of paradigms in criminal justice. Punishment was no longer meant simply to visit an evil upon the offender in retribution for the crime he had committed, but criminality was viewed as a "moral disease." Criminal justice, in analogy to medicine, now aimed at curing the offender of his evil tendencies, which were alternatively regarded as genetically or environmentally caused (see Dubber; Frommel). Leading European theorists of that era were Italians Cesare Lombroso, Enrico Ferri, and Raffaele Garofalo. In Germany, Franz von Liszt, departing from the traditional idealist notion of justice, was the founding father of an influential "sociological" approach to criminal justice, regarding the reform or, with respect to "incurable" criminals, the incapacitation of offenders as the goal of the sanctioning system. Together with Belgian Adolphe Prins and Dutchman Gerard van Hamel, von Liszt founded, in 1889, the International Union of Penal Law. The reform demands of this organization included the introduction of probation, the abolition of short-term imprisonment, the long-term incarceration of professional criminals, the creation of a special criminal law for juveniles, and the substitution of other sanctions for deprivation of liberty. Many of these proposals have since been introduced by legislation.

The crisis of the rehabilitative ideal. Beginning in the early 1960s, the idea that criminal sanctions can reform and rehabilitate offenders was challenged from two sides: criminological studies found that rehabilitative efforts produced no measurable effect (Lipton, Martinson, and Wilks), and human rights advocates argued that harsh and sometimes undeserved punishment was concealed by the rhetoric of reform (American Friends Service Committee; von Hirsch). These insights led in many countries to a reorientation toward retribution ("just desert") and incapacitation as the foundations of the system of criminal law. Sanctions of indeterminate duration, in particular, came to be regarded as misplaced in the criminal justice system. Although European legal systems did not go as far as some United States jurisdictions in establishing by statute fixed sentences or narrow sentence ranges for individual offenses, the 1970s and 1980s saw a clear movement away from the earlier medical paradigm of crime control and toward greater strictness. At the same time, some writers criticized imprisonment, which had since the nineteenth century become the backbone of the sanctioning system. Imprisonment was denounced as a fundamentally desocializing sanction, and reformers called for its replacement by noncustodial sanctions (restitution, fines, community service, probation) or at least for more open forms of corrections including furloughs and work release (Morris, pp. 12–27; Jescheck, pp. 1975–1989; Albrecht, pp. 291–305). Many legislatures followed up on these demands and enacted laws promoting the use of alternatives to traditional prison sentences.