John Harrington, Towards a Rhetoric of Medical Law, Abingdon and New York: Routledge, 2016, 190 pp, hb £80.00.

Published date01 September 2017
Date01 September 2017
Michele Pifferi,Reinventing Punishment: A Comparative History of Crimi-
nology and Penology in the Nineteenth and Twentieth Centuries,Oxford:
Oxford University Press, 2016, 305 pp, hb £70.00.
In the late nineteenth century, European and American legal experts ex-
pressed shared concern with the rising threat of ‘dangerous’ forms of com-
mon crime. Both in national juridical debates and in international penal-
reform congresses, they identified the inefficacy of ‘traditional’ punishment
as a leading cause of rising rates of crime, and especially recidivism. As new-
comers to these discussions, criminological positivists (or ‘penal modernists’)
blamed the theoretical foundations of ‘liberal’ (or ‘classical’) punishment as
the main problem and articulated their own ‘revolutionar y’ ideas about what
the purpose, scope, and rationale of penal discipline should be. Instead of the
conventional system of fixed, retributive sentences proportioned to the seri-
ousness of the offence and protective of individual rights over and against the
state, positivists promoted flexible, indeterminate, and above all individualised
punishments adapted to the offender’s personality and justified in the name of
‘social defence’.
These debates about individualised punishment lie at the heart of Michele
Pifferi’s ambitious, original, and important book. Drawing on an impressive
range of published sources, Pifferi examines the rise and influence of posi-
tivist conceptions of individualised punishment within the international penal-
reform movement as well as the implementation of those ideas in European
and American penal legislation between the 1870s and the 1930s. He con-
tends that the Unites States and European countries embraced and instituted
the principle of individualised punishment not according to a uniform crim-
inological blueprint, as many scholars have imagined, but in various ways
that reflected the legal traditions, juridical cultures, and constitutional struc-
tures of each nation. Pifferi also argues that in the process of developing and
implementing individualised punishment in their respective penal systems –
and debating the individualisation principle at international conferences – the
United States and Europe (including the United Kingdom) gradually forged
discernible and distinctive ‘penal identities’ during this period. Whereas the
United States favoured indeterminate sentencing with the ‘optimistic’ goal of
reforming ‘correctible’ wrongdoers, Pifferi explains, European countries gen-
erally endorsed a ‘double-track’ system of punishment in which ‘dangerous’
offenders were subjected to indefinite ‘security measures’ (either as alterna-
tives or as complements to ordinary penalties) primarily for socially defensive
and eliminative purposes. Even though American and European sentencing
models diverged, Pifferi maintains, the gradual shift from repressive to pre-
ventative punishment caused similar doctrinal and practical dilemmas on both
sides of the Atlantic. These numerous dilemmas, according to the author, were
C2017The Author. The Modern Law Review C2017The Modern Law Review Limited. (2017)80(5) MLR 974–994
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
exacerbated with the rise of authoritar ianism in the interwar era and have
remained largely unresolved ever since.
Comprising eleven chapters (including the introduction and conclusion),
the monograph essentially divides into three parts. The first (chapters 1 to
3) centres primarily on a lengthy, detailed discussion of methodology – what
Pifferi describes as ‘histor icizing’ the principle of individualisation. With this
approach, he seeks to analyse in two interrelated ways the origins, evolution,
and broader significance of individualised punishment in the United States and
Europe. In chapter 2, he explains how he employs the tools of comparative
history to assess the influence of criminological conceptions of punishment
on various national legal and constitutional systems over time. Joined to this
comparative approach is a transnational one (chapter 3) in which he examines
how the individualisation principle was developed and debated at the peri-
odic congresses of the international penal-reform movement (most notably the
International Prison Cong resses held between 1872 and 1935). Using these
complementary approaches, Pifferi aims to explain more fully than ever before
how criminological theories reshaped ideas about the nature, purpose, and le-
gitimacy of punishment over time; how nation-states integrated individualised
discipline into their respective criminal-justice systems; and how the United
States and Europe fundamentally differed in their approaches to instituting and
administering it.
Pifferi employs this complex methodology to good effect in the second
part of the book. In chapters 4 to 6, he examines the orig ins of positivist
theories of punishment, the trajectory of national and inter national debates
on indefinite detention, and the divergent implementation of individualised
punishment in the United States and Europe prior to the Great War. In
what he calls the ‘golden age’ of indeterminate sentencing in Progressive-
Era America (60), Pifferi discusses how the system of individualisation that
developed there became a ‘peculiar characteristic’ of the legal order that
set the United States apart from Europe (85). Beginning with Zebulon
Brockway’s model of indeterminate sentencing – instituted in the 1870s for
juvenile and first-time delinquents – radical criminological reformers substi-
tuted indefinite for fixed terms of incarceration and established rehabilitation
not retribution as the purpose of punishment. But what really distinguished
the United States from its European counterparts was the introduction of ex-
trajudicial prison boards, staffed with prison administrators and cr iminological
‘experts’, which were granted the sole discretionary power to oversee individ-
ualised sentences and determine the fate of convicts. Pifferi goes on to explain
why the American correctional model, both in theory and in practice, also
sparked sustained controversy. Drawing mainly on the writings of moderate ju-
rists and prison refor mers, he shows, among other things, how opponents con-
sistently defended legal and penological traditions from criminological assault;
questioned the legality of the indeterminate-sentencing system; and claimed
that the reformatory system did not work as well as its champions had hoped.
Legal experts on the other side of the Atlantic, according to Pifferi,
were similarly sceptical about the individualisation of punishment – and it
is in their ambivalent response both to reforms in the United States and to
C2017The Author. The Modern Law Review C2017The Modern Law Review Limited.
(2017) 80(5) MLR 974–994 975

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT