Georg Rusche’s Theory on Punishment and Social Structure
Barrett A. Crane
CCJ 5606 Fall 1998
Georg Rusche’s theory on punishment and social structure was first seen in his article "Labor Market and Penal Sanction: Thoughts on the Sociology of Criminal Justice", published by the Frankfurt Institute of Social Research in 1933. This article, which was originally a research proposal, laid the foundation for his book Punishment and Social Structure, which was co-authored with Otto Kirchheimer and published in 1939 (Platt &Takagi, 1980). Stephen Pfohl wrote how the work of Rusche and Kirchheimer is of particular importance in the theorizing of crime and crime control through a Marxist framework (1994). This paper will: (I) give a brief summary of Rusche’s original theory, (II) discuss how the model has been altered as new research has emerged, and (III) discuss the theory’s current popularity within criminology.
Georg Rusche felt that views of crime and crime control were limited, and that the field of criminology had much more to offer if looked at from a sociological perspective. Rusche felt that the criminological theories of the time concentrated too much in the biological and psychological sciences and neglected the field of sociology. He felt that these areas were important, but that crime and its punishment were social phenomena, and that economic theory and historical analysis were equally important in answering questions about crime (Rusche, 1980).
Rusche thought it necessary to break the bond between crime and punishment in order to gain insight into the history of punishment. By using this historical approach, Rusche shows how different modes of punishment are related with phases of economic development. Rusche proposed that the criminal law is directed mainly toward the lower class, and for penal sanctions to deter crime, punishment must be worse than this class’s current living conditions (1980). He stated in his book, "Insofar as the basic economic needs of a commodity-producing society do not directly determine the creation and shaping of punishments, . . . the choice of methods is largely influenced by fiscal interests" (Rusche & Kirchheimer, 1939:7). To support this proposition, Rusche divides the history of punishment into three major epochs: the early Middle Ages, the later Middle Ages, and the seventeenth century. Each epoch had a different system of punishment, which was related to the economic and social structure of society.
The Early Middle Ages
The use of penance and fines were the preferred methods of punishment in the early Middle Ages. During this period of history, the social conditions of the lower class were favorable. One of the main reasons for this is even though the population had increased in Europe, there were plenty of recently acquired lands that the lower class could work. If a feudal lord was too harsh with his serfs, they had the opportunity to sneak off and work another lord’s land, or seek employment in one of the many growing cities. This caused the lords to treat their serfs with more care, since their labor power was needed to work the land (Rusche & Kirchheimer, 1939).
The goal of criminal law, during this time period, was to maintain "public order between equals in status and wealth" (Rusche & Kirchheimer, 1939:9). There was no powerful central authority to enforce the law. Any crime committed against a person was considered an act of war against that individual. To prevent a blood feud from occurring, private arbitration was set up to impose fines against the wrongdoer, thereby establishing a sense of justice. It was at this time when class distinctions, in this form of a criminal justice system, became more apparent. Those members of the lower class that could not afford to pay the fines imposed on them were subjected to corporal punishment. Also, when a central authority came into existence and exerted their influence, it was quickly realized that this system of fines could be a good source of income to the state. Thus, fiscal interests definitely influenced this system of punishment (Rusche & Kirchheimer, 1939).
The Later Middle Ages
In the later Middle Ages, the population of Europe had recovered from the plague (the Black Death), therefore, the social conditions of the lower class declined. The increase in population caused a labor surplus, which allowed the landowners to lower the standard of living of the dependent peasants. This unemployed labor surplus created bands of vagrants, which wandered the streets. The law of supply and demand was displayed when this labor surplus drove down wages. The lower the value of labor, the harsher penalties became. This is when corporal punishment transformed into forms of torture, and capital punishment was used extensively. It was thought that these harsher penalties were needed to deter the growing population of the poverty stricken from committing crimes (Rusche & Kirchheimer, 1939).
The Seventeenth Century: Mercantilism and the Rise of Imprisonment
The end of the sixteenth century saw a shift in punishment towards imprisonment. This was caused by the inability of the population to keep pace with the ruling class’s labor power needs. This drop in population was due to the Thirty Years War, which put the population at post-Black Death levels. The ruling class saw the exploitation of prisoners as an answer to their labor needs. Prison labor was used for galley slavery, deportation, and penal servitude at hard labor. This allowed the ruling class to fill the gap in labor at extremely low cost, and in the case of galley slavery, enabled them to force people to perform this necessary task, which no free man would do. "The shortage of men eventually became so serious that the army had to be reinforced with criminals" (Rusche & Kirchheimer, 1939:29). It did not take long for this practice to cause the majority of the military to be constituted with the less than desirable elements of society. The transportation of prisoners to colonies was also used for a time as a cheap source of forced labor.
When the population rebounded, and there was once again a labor surplus, views toward imprisonment changed. The unfavorable conditions of the lower class did not permit the use of prison labor. The people demanded to work any job that had previously been done by prisoners. Corporal and capital punishment became popular again. In order to deter the impoverished lower class from committing crime, the living conditions of prisoners was carefully made worse than the living conditions of free men. "Prison labor became a method of torture, and the authorities were expert enough in inventing new forms; occupations of a purely punitive character were made as fatiguing as possible . . ." (Rusche & Kirchheimer, 1939:112). Carrying heavy stones from one place to another just to carry them back was one form of this punitive labor. Other types of punitive labor were stepping mills and water pumps that allowed the water to flow back into the well. Any type of useless labor with no meaning, except to punish, was used. This punitive labor in conjunction with inadequate nourishment and corporal punishment was the attempt of the ruling class to ensure prison conditions were worse than the most impoverished segments of society (Rusche & Kirchheimer, 1939).
Capitalism and the Need to Control the Labor Force
With the rise of capitalism came a new form of ruling class, which created two opposing groups of people. Karl Marx referred to these two classes as the bourgeoisie and the proletariat, and he stated that these newly created groups offer nothing but "new conditions of oppression, new forms of struggle in place of the old ones" (1979:89). The bourgeoisie, in keeping with their utility maximizing ideology, constantly exerted its power and influence in order to control the lower class (proletariat). In order for the bourgeoisie to produce more capital, they needed to exploit the labor of the working class, which causes what Marx referred to as oppression. This line of reasoning relates to Rusche’s theory of punishment and social structure. Simply put, when there is a labor shortage, wages go up causing the bourgeoisie to exert its power to supply their need for cheap labor. Exploitation of prison labor is the preferred method of treatment over corporal and capital punishment. When a labor surplus occurs, wages go down causing mass unemployment resulting in extremely harsh penalties, such as corporal and capital punishment executed in a tortuous fashion. This is thought to be needed in order to keep crime down (Rusche, 1980). The following paragraphs explain the different methods of control that the bourgeoisie exerted on the proletariat.
During periods of time when there is a labor shortage, the ruling class does whatever it can to supply its labor needs. One method of achieving this is creating laws that are favorable to them. An example of such a law is England’s vagrancy statute, which was originally enacted in 1349. This statute was an attempt to compel all able-bodied people to work or face imprisonment (Chambliss, 1979). This same law also stipulated that "any workman or servant, of what estate or condition he be, retained in any man’s service, do depart from the said service without reasonable cause or license, before the term agreed on, he shall have pain of imprisonment" (Chambliss, 1979:287). The same vagrancy statute was amended in 1351 in order to impose a maximum wage and to reduce the mobility of the population (Chambliss, 1979). This one law is and example of the laws passed which allows the ruling class to impose its will on the lower class. It forces everyone into work, prevents workers for demanding a higher wage in accordance with the law of supply and demand, and forbids the working class to leave their current employer to seek better employment conditions. Since the labor supply is so low, imprisonment is the preferred method of punishment for anyone breaking this law. This enables the ruling class to exploit prison labor at a much cheaper rate instead of paying the market value for labor. It does not make since to use corporal or capital punishment to deter crime during labor shortages since that would be destroying a valuable resource.
Another method that the ruling class used in trying to improve the labor shortage was to attempt to increase the birth rate. By increasing the birth rate, the ruling class is ensuring a larger labor pool in the future, and hopefully a labor surplus, which would drive down wages. The ruling class tried to alleviate poverty in order to encourage marriage and pregnancy. Religion helped enforce the value of increasing the birth rate. France "offered tax reductions for early marriages and large families" (Rusche & Kirchheimer, 1939:28). Nations enacted other laws such as forbidding penance on unmarried mothers to help prevent infanticide, dismissing the customary one year mourning period for widows, the forbidding of the consideration of illegitimate mothers as disreputable, and allowing unwed mothers to require compensation from the fathers (Rusche & Kirchheimer, 1939). These are incredible measures taken by the ruling class to serve their own interests.
During the industrial revolution, the ruling class turned prisons into workhouses, called houses of correction, to help supply their need for cheap, skilled labor. The goal of the house of correction was to force unwilling people to work. "By being forced to work within the institution, the prisoners would form industrious habits and would receive a vocational training at the same time. When released, it was hoped, they would voluntarily swell the labor market" (Rusche & Kirchheimer, 1939). This form of punishment also relates to Foucault’s theory of discipline and punishment when he states, "[the] general recipe for the exercise of power over men: [is] the ‘mind’ as a surface of inscription for power, . . . the submission of bodies through the control of ideas" (Foucault, 1979:399). This idea of instilling discipline as a form of control is not only powerful, but also very productive for the ruling class.
During periods when there is a labor surplus, the ruling class is just as resourceful in exerting its power over the lower class. A whole attitude shift toward the poor and the use of prison labor occurred once the population favored the interests of the bourgeoisie. No longer was it necessary to force beggars and vagrants to work through workhouses because it was not profitable. In fact, the workhouses turned into prisons that just warehoused people and cost money; they lost their profit value. Now, the goal of criminology was not to coerce labor from the poor, but to control this newly created surplus population. One method was the lax enforcement of the vagrancy laws. Not only was it not necessary to force them to work anymore, it cost money to put people in prisons. Whereas vagrancy laws had immobilized the working class and set maximum wage limits, the new attitude was to be charitable to the poor and allow emigration. As far as the wage limits, it was considered taboo to talk of manipulating wages against what the market value of labor fared. This was consistent with the attitude of laisser faire, which of course now favored the ruling class, but unfortunately further oppressed the working class (Rusche & Kirchheimer, 1939).
Measures previously taken to increase the population were no longer needed as well. In fact, it was generally thought that encouraging marriage and child rearing by the poor would balloon poverty levels. "Theorists demanded that steps be taken to check illegitimacy and to require government consent for marriage" (Rusche & Kirchheimer, 1939:90). All previous reforms enacted in regards to illegitimate children, brought about to discourage infanticide, were now attacked "on the grounds that it tended to weaken the social order" (Rusche & Kirchheimer, 1939:90). All legal support for illegitimate children was abolished (Rusche & Kirchheimer, 1939).
When the conditions of the lower class continued to worsen, the attitude toward punishment had to change as well. In order to prevent civil unrest, prison conditions had to decline to a level worse than outside conditions. This was also economical, because it allowed for fewer meals and no medical care. When the crime rate continued to increase, the situation was blamed on lenient crime policies, so corporal and capital punishment became popular again. "The whip and the rod, the pillory, the branding iron, and confinement with deprivations were restored in order to control the growing number of footpads and thieves" (Rusche & Kirchheimer, 1939:99). When it was found that the living conditions of the lower class and the prisoners were not much different, the humanitarian ideals of the Enlightenment were cast aside in an attempt to maintain a deterrent effect.
Legislators and judges were indifferent to prison conditions. They were content to assume that hunger, flogging, and hard labor would do their work, and that there could be no one so poor and miserable but that fear and shame would ultimately force him to do everything in his power to stay outside the prison walls (Rusche & Kirchheimer, 1939:113).
The squalid conditions of the prison caused mass deaths through starvation and disease, such as tuberculosis. The average life expectancy of inmates was reduced by approximately 30 years (Rusche & Kirchheimer, 1939).
For the most part, the ideas of Rusche were ignored for several years, until the 1960s (Melossi, 1980). Therefore, any significant contributions or critiques of Rusche’s work are very limited up to that point. Since the 1960s, there has been a renewed interest in the relationships between punishment and social structure among critical criminologists, thereby bringing the work of Rusche to the forefront. The following are major contributions and critiques of Georg Rusche’s work.
Otto Kirchheimer
The first major contribution, in my opinion, is the work of his co-author, Otto Kirchheimer. As mentioned before, Rusche’s theory was first published by the Frankfurt Institute of Social Research. The rumblings of World War II caused the Institute to move to Columbia University in New York, but Rusche was not one of the members that migrated to the United States. However, the New York institute did have Rusche’s manuscript to Punishment and Social Structure, but thought that it needed to be reworked. Kirchheimer was the one assigned to translate and rework the whole manuscript. He widened the book’s analysis to include the Nazi and Fascist period. Chapters II through VIII are mainly the ideas of Rusche, whereas the Introduction and chapters IX through XIII are Kirchheimer’s contributions. There is reason to believe that Rusche was not pleased with the contributions of Kirchheimer, and there was little, if any, discussion between the two about the book. This "double writing" is the source of many of the critiques of Rusche’s theory, some of which are following (Melossi, 1980).
Dario Melossi
Dario Melossi critiqued the work of Rusche and Kirchheimer in the Introduction of the Italian translation of their book Punishment and Social Structure (Platt & Takagi, 1980). Melossi criticized Rusche for stressing that the "labor market" was the reason for the introduction of imprisonment during the transition from feudalism to capitalism. He thought that the idea of discipline, which was briefly presented, was a stronger argument for the practice of imprisonment, and used the example of the idea of discipline spreading through the factories to support bourgeois ideology. He further critiques Rusche for using the single concept of labor market to reduce the very complex social phenomenon of punishment. Melossi stated, "Thus, even though the concept is useful, it is not fully sufficient" (Melossi, 1980:20). Melossi believed that changes in the structure of punishment could be better explained by the "the inner structure of the prison institution, as a section of a broader bourgeois program" (Melossi, 1980:20). He went on to say there were more problems with the second part of the book. He felt that Kirchheimer did an overall poor job in attempting to apply Rusche’s theory to the period spanning 1880-1930, to include the rise of fascism, and thought the end of the book failed to address contemporary events. Melossi believed the real question should be:
Melossi also thought that Rusche and Kirchheimer’s theory did not sufficiently explain the use of imprisonment while there was a labor surplus (Melossi, 1980).
Nevertheless, Melossi still thought Rusche’s theory was still valuable as part of the larger study of punishment. He countered arguments previously made by others that the theory is not complete. Melossi pointed out that Rusche never said it was a complete study of penal systems and law, but on the relationship between punishment and structure that included ideology. Melossi further stated that although the concept of "labor market" failed to explain the invention of prison, Rusche did an excellent job in giving an account of the history of imprisonment (1980).
Ivan Jankovic
Jankovic also gave a critique of Rusche and Kirchheimer in his essay "Labor Market and Imprisonment", which included the results of a study he conducted. The main task of his essay was to "explore the applicability of the Rusche-Kirchheimer theory to contemporary Western societies. Specifically, the potential connections between use of imprisonment and the conditions of the labor market . . ." (Jankovic, 1980:94). Jankovic’s two major criticisms of this theory was that it failed to provide an explanation for the continued use of prison, and that it overemphasized the use of fines as the typically capitalist punishment. He pointed out that incarceration and probation is the chief form of punishment in capitalist societies. Jankovic posed two questions not answered by Rusche and Kirchheimer:
Jankovic answers the first question by pointing to the decisive shift from manufacturing to service in Post-Industrial society. Probation does not interfere with employment; thus, it does not disrupt the production process. The maintenance of steady employment is required for people to on probation. Probation is also much cheaper that imprisonment (Jankovic, 1980). The average cost of to house feed, clothe, and supervise a prisoner is in excess of $30,000 per prisoner (Irwin & Austin, 1997:138). Jankovic answered his second question by stating that a labor surplus is typical in an advanced capitalist society, and imprisonment is used to regulate the size of the surplus labor force, along with the welfare system. Rusche and Kirchheimer failed to answer this question because their theory concentrated on the exploitation of convict labor (Jankovic, 1980).
Jankovic proposed two hypotheses to test based on Rusche and Kirchheimer’s theory:
Research results were shown to be consistent with the first hypothesis. "The relationship between unemployment and imprisonment was positive and statistically significant, regardless of the volume of criminal activity" (Jankovic, 1980:101). However, the second hypothesis was not supported by the data. The relationship was "negative as predicted, but the coefficients were not statistically significant" (Jankovic, 1980:101). Even though the data failed to support the second hypothesis, the study, overall, gives empirical support for the severity hypothesis. Jankovic thought that this provided a solid foundation for future studies on imprisonment and unemployment rates (Jankovic, 1980).
David Garland
David Garland made an interesting critique of Rusche and Kirchheimer’s theory in his book Punishment and Modern Society. Garland thought that their theory was too focused on the "labor market", and that economic causes were always primary in determining modes of punishment. Historians point out that this theory is too single-minded, other factors contributed to determining the modes of punishment as well. Transportation as a mode of punishment was often used to alleviate penological crisis at home instead of for economic motives. Houses of correction may originally have been built for profit, but few could sustain financial gain and most had to be funded by charity and local taxes. The idea of training a docile workforce through discipline was mostly reformers’ intentions than reality. Also, it fails to account for social, political and religious movements on prison reform (Garland, 1990).
Garland felt that these criticisms, as well as others not mentioned to prevent repetition, do not refute Rusche and Kirchheimer’s work. They make a major contribution to the field by making a link between the labor market and punishment. They also showed how penal policy is affected by class struggle and management of the lower class. Garland believed that their work, although crude, opened new avenues of study that did not previously exist (Garland, 1990).
Steven Spitzer
Although Rusche and Kirchheimer is not directly cited, the theory of the dominant class needing to control the lower class is very evident in Steven Spitzer’s work "Toward a Marxian Theory of Deviance." Spitzer, using Marxist theory, points out the effect that a labor surplus, endemic to a capitalist society, has on undermining the ideology of the capitalist state. This labor surplus forms two distinct problem populations: "social junk" and "social dynamite." "Social junk" occurs when there is a "failure, inability or refusal of this group to participate in the roles supportive of capitalist society" (Spitzer, 1994:404). This group is costly, yet relatively harmless to the establishment. "Social dynamite" is a group with a "potential [to] actively . . . call into question established relationships, especially relations of production and domination" (Spitzer, 1994:405). Members of this group tend to be youthful, alienated and politically volatile, which gives cause for the need of the dominant class to control this group (Spitzer, 1994).
Rusche and Kirchheimer’s theory of fiscal interests being the chief factor in determining modes of punishment may not be as accepted today as once hoped. However, their broader coarse of studying the social phenomenon of punishment and social structure is very popular among critical criminologists. Rusche and Kirchheimer’s book Punishment and Social Structure is considered classic comparative macrosociological study of punishment, and this pioneering path still generates some of the best work in the area of punishment (Platt & Takagi, 1980).
Theodore Chiricos
Theodore Chiricos has often used the theoretical linkages of labor surplus and punishment, derived from Rusche and Kirchheimer’s work, in his studies. Chiricos, with Miriam Delone, wrote the article "Labor Surplus and Punishment: A Review and Assessment of Theory and Evidence", which reviewed the "empirical evidence in light of theoretical formulations that have evolved from the original Rusche and Kirchheimer thesis" (1992:421). After a brief review of Rusche and Kirchheimer’s theory and its critical literature, Chiricos and Delone state:
Chiricos and Delone examined the findings of 44 empirical studies of the relationship between labor surplus and punishment. Although they admitted that many questions were left unanswered and more work was needed in this field of research, they found the "consistency and significance of the relationship of labor surplus to punishment is remarkably strong" (Chiricos & Delone, 1992:432). They also found that this relationship was often independent of the crime rate, giving evidence that the state’s penal practices had a direct role in controlling surplus labor (Chiricos & Delone, 1992).
Chiricos did further work in this area as shown in his article "Moral Panic as Ideology: Drugs, Violence, Race and Punishment in America" (1996). He argues that social ills caused by the investment decisions by owners of capital – whom Michael Lind refers to as the "white overclass" (1995:37) – are obscured by ideological use of moral panics. Chiricos specifically refers to the moral panics of violence and drugs to "justify the punitive apparatus of the state . . . even as crime rates are falling" (Chiricos, 1996:20). One of the ways in which he supports his argument is by showing how the state needs to control the surplus population, especially minorities – "social dynamite" (Spitzer, 1994), caused by capitalism (Chiricos, 1996). This line of reasoning can clearly be traced back to the work of Rusche and Kirchheimer.
Jeffrey Reiman
Another criminologist currently using ideas that can be partly derived from Rusche and Kirchheimer’s contributions to the field is Jeffrey Reiman and his "Pyrrhic defeat" theory, which he presents in his book The Rich Get Richer and the Poor Get Prison (1998). Although Rusche and Kirchheimer are not cited, some of the themes presented in this paper are found in Reiman’s Marxian critique of the criminal justice system. He argues that the "system functions the way it does because it maintains a particular image of crime: the image that it is a threat from the poor" (Reiman, 1998:5). The "Pyrrhic defeat" theory is the argument that the criminal justice system is designed to fail in order to benefit those with power, but is quick to caution that it is not a "conspiracy theory." Reiman argues that the failure of the system to reduce crime is an ideological message "that benefits and protects the powerful and privileged in our society by legitimating the present social order with its disparities of wealth and privilege and by diverting public discontent and opposition away from the rich and powerful and onto the poor and powerless"(Reiman, 1998:5). He supports his argument by showing how the rich receive preferential treatment and how the poor are demonized, showing a need for control. Reiman also draws a link between social structure, economics and crime as a basic domain assumption of his theory (Reiman, 1998). Reiman’s work, as previously stated, might not directly reflect the work of Rusche and Kirchheimer, but their influence is present in the formation of his theory, nonetheless.
Conclusion
This paper has provided a brief summary of Rusche’s theory, a quick review of what some of the critical literature had to offer and some examples of the influence of Rusche in current critical criminology. Rusche, along with his co-author Kirchheimer, have been criticized for their over- simplification of the complex social phenomenon of punishment. However, their work is considered a classic for its success of analyzing punishment as a phenomenon in and of itself, and for the new avenues of study that it stimulated.
References
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