The Politics of Punishment

Prison Reform in Russia, 1863–1917

Bruce F. Adams

• Editorial: Northern Illinois University Press
• Año: 2019
• ISBN:
  9781501747755
• Categoría: Politics & International Relations
• Categoría: Russian Politics

Bruce F. Adams examines how Russia's Main Prison Administration was created, the number of prisoners it managed in what types of prisons, and what it accomplished. While providing a thorough account of prison management at a crucial time in Russia's history, Adams explores broader discussions of reform within Russia's government and society, especially after the Revolution of 1905, when arguments on such topics as parole and probation boiled in the arena of raucous public debate.

CHAPTER ONE

THE MOVEMENT TO ABOLISH CORPORAL PUNISHMENT

It is possible that, on this point, the reformer may have gone ahead of the times. A certain shyness as regards Europe’s opinion may not have been foreign to this particular reform; but this feeling has urged Russia into many a step in the right direction since Peter the Great, and, for states as for individuals, ambition, a care of other people’s opinion, may at certain times, be good advisors. Who knows where Russia would stand now but for that very spur?

—Anatole Leroy-Beaulieu, The Empire of the Tsar

THE IDEA

For several hundred years before 1863 the most common form of punishment in Russia was corporal punishment. Criminals sentenced by the courts, soldiers and sailors judged by military authorities, and serfs disciplined by their masters were regularly whipped, beaten, and branded by a variety of implements. Peasant elders thrashed their fellow peasants. Yet over the previous century the severity of corporal punishments had slowly been mitigated in law, and by the middle of the nineteenth century many well-educated reformers were calling for their abolition. In 1863 they almost had their way: most remaining corporal punishments were abolished, and those that continued to be used were reduced in severity.

This occurred in the midst of the Great Reforms, when other profound changes were being made. The penal reform was part of this greater whole; it was especially closely linked to emancipation, in part caused by it. Although it preceded them, it was also closely related to the judicial reforms and, in general, to the mood of confidence and excitement generated by and producing those larger reforms. But the penal reform should not be understood simply as a necessary, but minor, part of the Great Reforms, a corollary to emancipation and court reforms. The changes made by the law of 17 April 1863 had purposely been excluded from emancipation legislation only two years before. The penal reform was not impelled by the economic urgency that stood behind emancipation or by the personal and class interests entangled in the court and zemstvo reforms. What it shared with the other Great Reforms was the old and growing desire of Russia’s educated upper classes to implement a program of “liberal” reforms, as most of Europe had done much earlier. Part of that desire stemmed from their wish to consider themselves modern Europeans and to have Europeans accept them and their nation as such. Their feeling of shame at the “barbarity” of their country was a most important motivation for the penal reform.

The very old idea that corporal punishment is incompatible with the dignity of free men was resurrected in the European Enlightenment and made its way quickly to Russia. Those to whom the idea was available immediately applied its meaning to themselves and only slowly extended the same courtesy and protection to other groups in Russian society. Eventually, when the serfs were emancipated, it seemed only right to exempt them from indignities that were no longer suitable to their free condition. By that time most corporal punishments had been eliminated in other European countries.

How and where the idea originated that corporal punishment and human dignity are incompatible is unclear to me. It is not an entirely “natural” concept that arises with the first stroke of the rod or the whip, for millions of people have been punished in that way without raising that objection. In Russia, after the reform of 1863 many peasants expressed their preference for corporal punishments over fines and incarceration. Still, the idea of their indignity is old. Many great civilizations have used corporal punishments extensively and for long periods of time, but they have usually distinguished between their unprivileged masses and various privileged groups, who have been exempted from corporal punishments. In the Roman Republic, for example, where at least five forms of corporal punishment were frequently applied, they were never legally applied to a Roman citizen. In the Roman Empire corporal punishment was established only for persons of lower rank (humiliores). Equality of persons before the law was a recognized principle in medieval German law, but the poor still found themselves subjected to corporal punishment much more frequently than did citizens of substance. Convicts who could not pay fines were beaten or otherwise humiliated instead. French law, which did not recognize the principle of legal equality until after the Revolution of 1789, imposed corporal punishment much more frequently on the lower classes.1

Severe punishment was common throughout Europe and Russia in the Middle Ages. The use of corporal punishment, torture, and capital punishment reached its greatest heights between the thirteenth and seventeenth centuries. In the ingeniousness of devices and the ferocity and frequency of their application, the period surpassed any before or since. Only slowly did the most vicious practices disappear.

In the eighteenth-century Enlightenment the emerging intelligentsia revived and extended many old ideas they found satisfying or useful. Among them were ideas of rights and privileges that they claimed for themselves and, in some cases, for their countrymen or for all men. They propounded new ideas about the rights of man and human dignity to justify changes in civil law. These spilled over into criminal law as well and helped to cause changes in European criminal and penal practices.2 Russia did not share in the social changes that midwifed these ideas or in the political upheavals of the “age of revolutions,” but the ideas moved across its borders. Educated Russians read Locke, Montesquieu, Rousseau, Beccaria, and Bentham and were impressed by the force of their ideas and by the recent social and political changes in Europe that seemed to stem from them.

Cesare Beccaria, who had few original ideas, probably had the most direct and profound influence on European thinking about crime and punishment. In his treatise On Crimes and Punishments, which was first published in 1764, he compiled what the Encyclopedists, the philosophes, and his enlightened Italian friends had to say on the subject. Beccaria did not advocate the abolition of corporal punishment. On the contrary, he stated clearly that it was still needed. He was most concerned about doing away with the death penalty, with torture, which he insisted was not punishment at all because it preceded determination of guilt, and with mutilation, which he and historians of punishment have called the most barbarous form of corporal punishment.

Beyond Beccaria’s intentions, however, the movement toward leniency, for which his book became gospel, produced in believers a general condemnation of all excessively harsh punishment as uncivilized and even counterproductive. Each subsequent generation of reformers reviled as cruel and unusual the forms of punishment that the previous generation had considered normal and justified. In the late eighteenth and nineteenth centuries, European reformers included one after another of the remaining forms of corporal punishments in their attacks on “barbarous” and “uncivilized” remnants of the old world. Beccaria was then used as an authority to support what he himself had not said. It is easy to read in his words general disapprobation of severe punishment, including forms he had not hoped to abolish. The following quotation conveys particularly well the spirit of this movement:

[The] purpose of punishment is neither to torment and afflict a sensitive being, nor to undo a crime already committed. Can there, in a body politic which, far from acting on passion, is the tranquil moderator of private passions—can there be a place for this useless cruelty, for this instrument of wrath and fanaticism, or of weak tyrants? . . . Always keeping due proportions, such punishments and such method of inflicting them ought to be chosen, therefore, which will make the strongest and most lasting impressions on the minds of men, and inflict the least torment on the body of the criminal.

Who, in reading history, can keep from cringing with horror before the spectacle of barbarous and useless torments, cold-bloodedly devised and carried through by men who called themselves wise? What man of any sensibility can keep from shuddering when he sees thousands of poor wretches driven by a misery either intended or tolerated by the laws (which have always favored the few and outraged the many)?3

Even in Western Europe, where the impact of Beccaria’s book was immediate and strong, reform came slowly. Torture, mutilation, and the more agonizing and gory forms of capital punishment were outlawed long before abolition of whipping and caning was seriously considered. In Russia the process was slower. A major reason for this was the absence in Russia of a receptive intelligentsia.4 Only a small educated elite could read and appreciate Beccaria and his contemporaries, and not many of them seem to have spent much time pondering criminal punishment. At any rate, few left record of it before the 1860s. Civil law, as always, received much more attention than did criminal law, which affects only a minority of any population and a distinctly unpowerful minority at that. But, as in Europe, there grew in Russia a significant body of educated people who thought of themselves as not only educated but also enlightened. As people who had seen the light, they agreed with Beccaria. Perhaps, more accurately for the first generation of this tentative new Russian intelligentsia, as men (and a very few women) who wished to seem and feel enlightened, they had to agree with Beccaria.

As a first principle, they considered humankind rational, capable of being governed by reason rather than by passion. This was a mark of the enlightened person. Corporal punishments were clearly passionate, physical, not cerebral, and, unlike imprisonment, which everywhere replaced corporal punishment, they did not give the offender time to consider his sin or guilt. What kind of “lasting impression on the minds of men” could be made by forty strokes delivered in five or ten minutes? Reasonable people who believed in due proportions could only agree with Beccaria’s conclusion about the excess of punishments.

For a punishment to attain its end, the evil which it inflicts has only to exceed the advantage derivable from the crime; in this excess of evil one should include the certainty of punishment and the loss of the good which the crime might have produced. All beyond this is superfluous and for that reason tyrannical.5

If an enlightened Russian had not read Beccaria, he could have found the same idea in John Locke’s Second Treatise of Government, which had long been available in Russia: “Each transgression may be punished to that degree and with so much severity as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like.”6 He could also have found this concept in Empress Catherine II’s Instruction to the Legislative Commission of 1767.7

A second characteristic of Enlightenment thought was that it envisioned people as creatures of the present and the future. The romantics would later grow nostalgic, but the philosophes were scornful of the past. They meant to cast aside the shadows of the past, of the dark ages, when people behaved irrationally and violently. Their vision of people as reasonable and intrinsically good (or at least as perfectible if flawed) slowly pushed aside the gloomier view earlier theologians and philosophers held of human nature. Modern people, or rather people as reason now revealed them to have always been, were violent only in a violent society. Each individual could choose to be pacific, and an enlightened person would, for it had now been shown to be in his own and society’s best interest. Useless violence, including torture, mutilation, and excessive corporal punishment, was anachronistic in this new world.

Beccaria explained how such violence sustained itself once it was established:

Men are regulated in their conduct by the repeated impression of evils they know. . . . In proportion as torments become more cruel, the spirits of men, which are like fluids that always rise to the level of surrounding objects, become callous, and the ever lively force of the passions brings it to pass that after a hundred years of cruel torments the wheel inspires no greater fear than imprisonment once did. The severity of punishment itself emboldens men to commit the very wrongs it is supposed to prevent.

He asserted in conclusion that the “countries and times most notorious for severity of penalties have always been those in which the bloodiest and most inhumane deeds were committed.”8 Montesquieu, who was popular with educated Russians, had written, “Experience shows that in countries remarkable for the lenity of penal laws, the spirit of the inhabitants is as much thereby affected, as in other countries with severer punishments.”9

At the time the philosophes were writing, Russia was not remarkable for the lenience of its laws. More than a century earlier, Tsar Mikhail had considered exempting the Russian nobility from corporal punishment, but the idea was not widely held nor strongly supported. Terrifying physical punishments, both capital and corporal, were written into the Ulozhenie of 1649, and they made little allowance for rank. What class distinctions were made in punishments were of an arbitrary nature and made outside the law. Under Peter the Great no distinction was made in the army among ranks or classes when punishment was meted out. After his death in 1725, however, officers increasingly tended to be whipped or beaten with rods, and lower ranks would more likely receive the knout, which was a more painful and dangerous punishment. Still, such differences were not codified. According to Prince M. M. Shcherbatov, a marshal of the gentry and a delegate to Empress Catherine II’s Legislative Commission, although there was talk from the 1730s on of treating the gentry with as much respect as they received in other European countries, nothing was said specifically about exemption from corporal punishment even twenty years later.10 The idea began to take root early in the reign of Catherine II, which, not coincidentally, were the years that Montesquieu’s and Beccaria’s writings began to reach Russia.

Although historians still dispute the meaning and purposes of Catherine’s acts, there is little question that she liked to think of herself and to have others think of her as enlightened. She corresponded with Voltaire, Montesquieu, and Beccaria, among others of the leading philosophical lights of the day. She not only read their books but also took serious note of them. As she prepared to convoke the Legislative Commission in 1767, she incorporated many of their basic ideas into her Instructions to the commission.11 Catherine even invited Beccaria to come to Russia to help her prepare the document. A distinctly unadventure-some sort, he declined.12 One student of the commission has called it “Catherine’s wish for an advertisement to Europe of the introduction of the Enlightenment into Russia.”13 This was not the main stimulus for the commission; there were more important domestic considerations. But Catherine did use it in this way. In her correspondence with Voltaire and others she exaggerated and distorted the importance of the commission to make it seem like evidence of her own and Russia’s enlightenment.

The commission did not, however, produce “enlightened” penal legislation. To the contrary, the instructions written by delegates to the commission reveal that many Russians disagreed with their empress about many of her enlightened notions, including the wisdom of making punishment less severe. Representatives of several regions protested Catherine’s partial abolition of torture in 1763, claiming that “the punishment of crime had been seriously hampered.” The gentry of one district felt that “soft measures” might suit more-enlightened nations but that Russia was not yet ready for them. This showed that, although they disagreed with their empress, they were at least aware of the connection the p...