Regulating the Prison Population

REGULATING THE PRISON POPULATION
Experiences from a Long-term Policy in Finland

Tapio Lappi-Seppälä, Finland

Presentation delivered at

The Beyond Prisons International Symposium

Sponsored by the Correctional Service of Canada

March 15-18, 1998, Kingston, Ontario

Complete conference proceedings available on the website

of the Correctional Service of Canada (

I INTRODUCTION

1. At the beginning of the 1950s, the prison rate in Finland was four times higher than in other Scandinavian countries. We had some 200 prisoners per 100,000 inhabitants, while the figures in Sweden, Denmark and Norway were around 50. Even during the 1970s, Finland's prisoner rate continued to be among the highest in Europe.

However, the decrease that started already after the Second World War has been steadily continuing. And slowly -without dramatic changes -Finland has reached the Scandinavian level. During the last five years our prison rate has been stable. At the moment there is a remarkable similarity among the Scandinavian countries.

Figure 1 Prison rates in Finland, Sweden, Denmark and Norway in 1950-1995

2. In order to explain these trends and changes, one should start with the question, why Finland-in the first place-had adopted a policy that was so strikingly different from the other Scandinavian countries.

One probable explanation for this is connected with the harsh history of Finland-the Civil War of 1918 and the hardships of the two wars with the Soviet Union 1939 1944. According to the Norwegian criminologist Nils Christie, this created a cultural climate where severity was measured according to a different scale in comparison with other Nordic countries (Christie 1968, 171). The "penal value" of imprisonment was smaller (or experienced as being smaller) in Finland than was the case in other countries. This argument is partly supported by the fact that at the turn of the century the Finnish prisoner rates were on the same level with those of the other Scandinavian countries.

Another and more technical reason was the rigidity of Finland's penal system. The high minimum penalty for aggravated theft introduced in 1889 (and then abolished in 1972) made it difficult for judicial practice to adapt to changing perceptions of the gravity of theft offences in a prospering society (cf. Lång 1989, 84). The third explanation may be found in the severe sentencing practice for drunken driving, which kept the figures high as late as the 1960s and the early 1970s.

3.The main issue, however, is to find an answer to the question: What changed the situation? Why did the Finnish numbers go downwards, while at same time most European countries were experiencing rising prisoner populations?

The short answer to this question is that there is no simple explanation. This development resulted from several factors. First, there were changes in penal theory and thinking relating to criminal policy. There were also changes in penal legislation, in sentencing and prison enforcement practices. And, perhaps more importantly, on the political level a consensus was reached that prison overcrowding was a problem and something should be done with it.

II CHANGES IN THE IDEOLOGY OF CRIMINAL POLICY

1. During the 1960s and the early 1970s the dangers of the ideology of coercive treatment (rehabilitation) became more and more evident. Experimental studies generally did not demonstrate that coercive treatment had any dramatic crime reducing effect. Consequently, in Scandinavia the following years witnessed a series of reforms which all reduced the powers both of the welfare authorities to use methods of coercive treatment and of the agencies of criminal justice to restrict liberty on rehabilitative grounds.

2. Also the aims of criminal policy were re-defined (see especially Törnudd 1969/1996, 14 15). Cost-benefit analysis was introduced into criminal political thinking. In making choices between different strategies and means, the probable policy effects and costs were now assessed. One result was that the arsenal of possible means of criminal policy became larger in comparison with the traditional (repression or rehabilitation orientated) penal system. Furthermore, the possibilities of employing environmental planning and situational crime prevention in controlling crime were discussed. Another slogan was: "Good social development policy is the best criminal policy".

One result of this new line of thought was that the roleof punishment was seen to be relative. Once the primary means of criminal policy, it came to be regarded as only one option among many.

3. Of course, criminal law still maintained an important role as a means of upholding the norms of society and the protection of individual rights and community values. But instead of the hopes for "penal rehabilitation", the emphasis shifted towards general prevention. This can be briefly defined with the words of Johs. Andenaes as "the restraining influences emanating from the criminal law and the legal machinery" (Andenaes 1966/1974, 34).

It is of vital importance to stress that in Scandinavian criminological theory, the mechanism of general prevention has been given a broad and sophisticated interpretation. Instead of direct or simple deterrence, the theory speaks of indirect general prevention or-more often-the moralcreating and enforcing effect of punishment. And this is something different than obeying the law because of simple fear of punishment.

According to this theory, the disapproval expressed in punishment is assumed to influence the values and moral views of individuals. As a result of this process, the norms of criminal law and the values they reflect are internalized; people refrain from illegal behaviour, not because it is followed by unpleasant punishment, but because the behaviour itself is regarded as morally blameworthy.- This line of thinking is no longer typical only of Scandinavian penal theory. The German concepts of "positive General-prävention" and "Integrationsprävention" as well as the Anglo-Saxon theory of "moral education" and "penal communications" contain similar elements.

This mechanism of indirect general prevention poses some central demands on the penal system. The aim of indirect prevention is best served by sanctions that maintain their moral character. Punishments must be regarded as expressions of society's disapproval and they must be directed towards the act (= demonstrate the blameworthiness of the act). Furthermore, it is required that the citizens perceive the system to be reasonably efficient and legitimate. Principles of proportionality and perceived procedural fairness are key factors that influence the willingness of the people to conform to the law (see in more detail Lappi-Seppälä 1995 with references).

Thus, the idea of general prevention does not imply increased severity of punishment. The effective functioning of criminal law is not based on fear, but on legitimacy and acceptance. From the point of view of indirect general prevention, the principles of justice, proportionality and fairness are more important than sentence severity.

4. The policy conclusions drawn from these ideological changes can be briefly summarized. In crime prevention, criminal law is only one means among many. These other means are often far more important. This does not mean that we could do without criminal law. It still is of vital importance, but its mechanisms are more subtle and indirect than one usually thinks. All in all, we should not overestimate its potential. We should be realistic as regards to the possibilities of achieving short-term effects in crime control by tinkering with our penal system.

And what is most important, we should always weigh the costs and benefits of applied or suggested strategies of criminal policy. And this, indeed, was the test that our earlier prison politics failed to pass. It was difficult to answer convincingly the question of why should we have three to four times more prisoners than do our neighbours.

III LEGISLATIVE REFORMS AND SENTENCING POLICIES

One may distinguish between three main types of legislative reforms that influence the prison rate: those that shape the structure of the penal system and the sentencing alternatives, those that change the penal value and the level of sanctions for certain offence categories, and those that concern the enforcement of prison sentences and parole system.

Of course, there are also other ways to reduce the prison rate. In 1967 the number of prisoners was reduced through an amnesty which shortened the prison sentences by one-sixth. In 1969 the decriminalization of public drunkenness reduced the number of default prisoners (prisoners serving a sentence for unpaid fines) from a daily average of 800 to less than 100. -However, the following observations will concentrate on the reforms and changes that deal with the general structure of the system of sanctions. I will identify and deal with six of them. A more complete list of the legislative reforms that have been carried out in Finland since 1967 can be found in the appendix G.

1 The System of Preventive Detention

1. The first reform in this series of legislative acts was the restriction of the use of preventive detention. The Finnish criminal justice system includes a provision for holding chronic recidivists in preventive detention after the completion of the sentence, if both the sentencing court and a special court so decide. Even during the 1960s, the large majority of detainees had been guilty of repeat property crimes. On the basis of an amendment passed in 1971, the option of preventive detention was restricted only to dangerous violent offenders. The number of persons held in detention as recidivists dropped by 90 % in one year, from 206 to 24. Since then, the annual average has been between 10 and 20 prisoners.

2. The role of this system of preventive detention is further diminished by the fact that during recent years no one has been kept in custody longer than their original sentence would presuppose. The present meaning of the system is therefore restricted to the fact that a small number of prisoners will not get the benefit of early release on parole. According to a recent proposal, the entire system of preventive detention would be abolished.

2 Traditional Alternatives to Imprisonment:
The Fine and the Conditional Sentence

1. In an international comparison, Finland's criminal justice system offers relatively few alternatives to imprisonment. The Finnish judge usually has the basic options of sentencing the offender to unconditional imprisonment, conditional imprisonment or a fine. However, these alternatives have been used fairly effectively.

2. The fine has been the principal punishment throughout the present century. (This is partly due to the fact that there is no general administrative penal law in Finland. Practically all offences are classified as crimes and treated under the label of criminal punishments.) However, the use of fines was extended to more serious crimes during the late 1970s by raising the amount of (day) fines. To a certain extent, the purpose of this reform was also achieved.

3. However, the most effective alternative to imprisonment has been the conditional sentence. Sentences of imprisonment of at most two years can be imposed conditionally, provided that "the maintenance of general respect for the law" does not require an unconditional sentence. In younger age-groups the presumption in favour of conditional sentence has been strengthened by a special provision which allows the use of an unconditional sentence for those who have committed the offence under the age of 18 only if certain extraordinary reasons call for it. In practice this means either that the crime is especially serious or that the offender has several prior convictions.

An offender sentenced conditionally is placed on probation for a period of one to three years. For adults, such probation does not involve supervision. However, a young offender who is sentenced conditionally may be placed under supervision for the period of probation. A conditional sentence may be ordered enforced if, during the probation period, the offender commits a new offence for which (s)he is sentenced to imprisonment.

The conditional sentence has proven to be a powerful means in restricting the use of imprisonment. In 1976 the conditions for using conditional sentences were relaxed. In order to encourage the use of conditional sentences, the new law also allowed the combining of a conditional prison sentence with an unconditional fine.

The statistics show (see figure 2 below and tables A and B in the appendix) that the popularity of this sentencing option has increased throughout the entire period. During the period from 1950 to 1990 the number of conditional sentences has increased from some 3,000 to 18,000 sentences per year. The growth was especially rapid between 1970 and 1980. This was partly a result of the changes in Finnish policy regarding drunken driving. In fact, the reform of the Conditional Sentence Act in 1976 was synchronized with the reforms of the provisions on drunken driving and on general sentencing in 1977.

Figure 2 Penalties imposed by the courts 1950-1995

Specific Categories of Offences

3.1 The Policy on Drunken Driving

1. Drunken driving plays a special role in Scandinavian criminal policy. This is especially true in Finland. We have hard drinking habits and a lot of problem users - but at the same time we have a very restrictive and intolerant attitude towards drinking-and-driving.

2. This combination has kept drunken driving among the key issues in debates on criminal policy. A substantial part of our prison problems during the 1960s resulted from the severe sentencing practice and fairly long unconditional prison sentences imposed for drunken driving. However, during the 1970s this practice was changed in favour of non-custodial alternatives. The movement was started by the courts themselves, but this development was reinforced by separate legislative acts. The definition of drunken driving was modernized by an amendment of the law in 1977. In this connection, the legislator made it clear that the courts should restrict the use of unconditional imprisonment in favour of conditional sentences and fines.

A year earlier (1976) the legislator had also introduced new sentencing provisions, which were aimed at giving the courts general guidance in meting out punishments for all offences. This reform provided a framework for further discussions on the proper sentencing level. Giving guidance to independent judges is, of course, a delicate and difficult matter. The discussions were, in fact, run by the judges, with only organizational help from the Ministry of Justice. These seminars and courses for judges turned out to provide an excellent means of reaching informal agreement on new sentencing practices (for more information, see Lappi-Seppälä 1990).

• Some of the experiences from the so-called "sentencing guideline system" applied in the United States have demonstrated the dangers involved in a system that restricts the sentencing discretion of the judges with narrow sentencing latitudes decided by political bodies and governments. The continental tradition where the legislator decides only in broad terms on the latitudes, and the rest is at the discretion of the judges seems to be less vulnerable to short-sighted and ill-founded political interventions. What, of course, is needed is statistical information on the existing sentencing patterns, reasoned higher court decisions and open discussions about preferable sentencing levels. - But the last word in these matters should be given by the judges who have the facts at their fingertips and who are familiar with the reality of crime (and who unlike the public - are not dependent on the information given by the media).

3. All in all, the efforts to change sentencing practice regarding drunken driving proved to be a success. In 1971, 70% of drunk drivers received an unconditional sentence. Ten years later, in 1981, this proportion had dropped to 12%. Since the reform of 1977, the normal punishment for aggravated drunken driving has been conditional imprisonment together with an unconditional supplementary fine, while "ordinary" drunken driving cases (BAC under 1.2 o/oo) are dealt with by fines. The development of court practice in 1950-1990 is illustrated in figure 3 below and table B in the appendix..

Figure 3 Penalties for drunken driving 1950-1990 (percentages)

4. The case of drunken driving illustrates some of the conditions for a successful legislative strategy. If sentencing patterns are affected by several different elements, one may have to change them all in order to achieve the intended result. In the case of drunken driving the legislator first created the opportunity for combining a fine with a conditional sentence, then raised the amount of day-fines. After passing a bill on drunken driving, new provisions on sentencing were also enacted, and these provided the framework for discussions on the sentencing levels and normal punishment. In a way, all these reforms were a part of "one big package" (Gov. proposals no. 108, 109, 110 and 125/1975).

3.2 Theft

1. Another offence category that has dominated Finnish prison figures is theft. Long custodial sentences imposed for traditional property crimes kept the prison population at its peak level during the early 1950s. High minimum penalties and rigid offence definitions for aggravated forms of theft affected the number of Finnish prisoners as late as the early 1970s. However, in 1972 new definitions and new punishment latitudes for larceny were introduced. As a result, there was a clear change in the sentencing practice. In 1971, 38 % of offenders sentenced for larceny received a custodial sentence. Twenty years later, in 1991, their number had decreased to 11% (see appendix B).

The next amendment that affected sentencing came in 1991. One of the stated aims of this reform was to limit the use of imprisonment i.a. by introducing shorter punishment latitudes. Courts were also encouraged to use short sentences of imprisonment by instructing them to mete out the shorter sentences in days instead of months. This reform also increased the use of fines and reduced the average length of prison sentences.

2. Figure 4 below and table B in the appendix provide several pieces of information oo the sentencing patterns in the case of theft. The changes are rather dramatic. For example in 1950 the average length of all prison sentences imposed for theft was 12 months. In 1971 the median sentence was still 7,4 months, but in 1991 it was only 2,6 months of imprisonment. (Of course one has to take into account that in the long run the typical forms of theft have changed. Crimes against individual victims and households have been replaced i.a. by minor forms of shoplifting etc.).