FECL 41 (February 1996):
A true story
Let me begin by telling a story. A true story. But let me first briefly describe its context:
The 1970s were a relatively liberal period in Norwegian penal policy, with a substantial decrease of prison population. Decriminalisation and depenalisation were at least relatively positive public concepts. And though implementation lagged behind, it was at least possible to voice the view that prison conditions were in need of improvement and that imprisonment should be resorted to more sparingly. The Norwegian liberalism of the 1970s had parallels in other Western countries. In some countries (e.g. Sweden, Britain and parts of the USA) it led to an actual decline of prison populations.
All this changed towards the end of the 1970s and during the 1980s. Those of us participating in the public debate over penal policy experienced a gradual stiffening of the climate. In Norway, this backlash took place in the late 1980s. As a matter of fact, it was triggered by one particular incident in 1988. And this is where my story begins.
In July 1988, a well-known imprisoned drug dealer escaped from a birthday dinner while on a few hours leave, with staff, from prison. Again in July 1988, it became known, that a lesser-known liquor smuggler had received a few days furlough to Denmark from a treatment institution to which he had been transferred from prison during his sentence. The drug dealer's escape was of course contrary to the rules, but escape from prison is not criminalised in Norway, and this escape represented no danger whatsoever to the public. In fact, during a later trial the inmate was acquitted of criminal charges brought against him for activities during his escape. As for the liquor smuggler's furlough, it was entirely lawful. It had been granted by the treatment institution to which he had been transferred. At face value, in other words, both events were entirely undramatic. But in my society, drug dealing and liquor smuggling have the darkest of connotations, and with these particular ingredients, a public frenzy broke loose. The frenzy mounted through three major steps.
Firstly, the police immediately made statements in the strongest possible language about the neighbouring department - the prison service. "So spineless that I cannot stand it", said the chief of the narcotics police to the largest Oslo morning newspaper. "We all have quotas of blunder, but the prison department has long since exhausted theirs", was the comment of the chief of the Oslo criminal police to the same newspaper.
The police had for a long time been "after" what they considered the prison department's far too liberal policies, especially towards drug offenders. Now the police obviously saw their chance.
The second step was the mass media follow-up of the harsh verdict of the police. That follow-up, which actually continued during most of the summer of 1988, followed two typical and partly overlapping lines. For one thing, the mass media searched intensively for similar sensational individual cases. It is part of the very development of the modern mass media, and of a modern concept of the "newsworthy", to do just that. And they found a few cases - among others, a convicted murderer and model prisoner who had received a furlough from prison and who -according to rumour - had escaped to Morocco. Major headlines were devoted to this escape.
Furthermore, the mass media squeezed the maximum amount of sensation out of the cases that were found. To do this is also a part of the very functioning of the modern mass media. The "squeezing process" in its turn also followed two lines. Firstly, the media, including the powerful national Norwegian Television Company, treated the few individual cases as serials. The cases were kept on the front pages and the television screen for weeks, thanks to a continual presentation of new "angles" - to use a phrase from modern media language. Secondly, the cases were given rich contextual details in the most titillating ways. Again, the Norwegian Television Company was particularly imaginative. The drug dealer, it was reported, had ordered breast of duck and Cardinal red wine during his escape. The reason for this particular order was, again, his birthday celebration. Breast of duck and red wine were shown on the screen, the cardinal being poured into crystal glasses on white damask. The liquor smuggler, it was speculated, might just now be visiting "Legoland" - a kind of Danish version of Disneyland. Pictures from the toy trains and fun in Legoland were shown on the screen.
Let me, at this point, personalise the story a bit. On one of these hot July days I received a telephone call from the Norwegian Television Company. They wanted me to make a statement. What followed, shows some of the details in the workings of modern mass media, especially television. I agreed to make a statement. Why did I agree?
In advance, I had a fair amount of experience with media, I had even written a fair amount about them and knew that they were distrustful allies, to say the least. But phenomenologically, as the pleasant television woman called, that experience somehow faded into the background. I remember I thought that this was after all a chance to say something, to correct something. My prior knowledge of the fact that you are often unable to say much at all on television, somehow evaporated. The point here is that the modern mass media, such as television, give you what I would like to call a marginal chance to express yourself. They do not stop you completely, but give you a marginal chance. The alternative to the marginal chance is to say nothing, which means silence. The structure of marginal chances to express something lures you into participation.
Furthermore, I also remember that deep inside I felt a diffuse sense of pride. I was important enough to be asked. I was not an unimportant outsider. In other words, I behaved a bit like a child who is asked to play with other important children in school. The marginal chance to express at least something, which the mass media give, coupled with the sense of pride, or even feeling of existence, attached to appearance on the media scene, are two extremely important forces driving professionals and semi-professionals of all sorts and types into the network of the mass media. Such are the fine lines of media power.
As for my particular appearance on TV that hot summer day of July 1988, I made a ten-minute statement made "on location" in front of the Oslo District Prison. The fact that the escape had taken place from an entirely different prison did not matter to the Television Company. My ten-minute statement was "condensed" to one sentence in the evening news: "I am for more liberal prisons!" My statement was accompanied by pictures of breast of duck and Cardinal red wine in crystal glasses on white damask. The director of the local prison was also interviewed. Again, little more than one sentence was extracted: "I am for more discipline, though not slavish discipline!" Knowing him as a very meticulous and correct person, I am sure he said more than that. His words were accompanied by pictures from American prisons, where the uniformed prisoners had to run around in a circle under the watching eyes of armed guards wearing brown battle dresses and shouting orders. "Two views on prison policy", the reporter objectively concluded, implicitly informing the television audience, that in Norway, breast of duck, Cardinal red wine and Scandinavian versions of Disneyland are the order of the day in the prison system.
So much, for the time being, about the mass media. I will return to them shortly.
The third step in the mounting frenzy was the ensuing reactions of the politicians, including several leading members of parliament. A large number of political statements were made by the whole spectrum of political parties, from the ultra right-wing party at one extreme to the Social Democrats at the other. The ultra right-wing party wanted private prisons because they would presumably tighten security in order not to lose business. The party claimed that the proposal was brand new and original, obviously not knowing what had long been going on in several other Western countries. The Social Democrats argued that the penal policy of the 1970s was no longer suitable. The statements from politicians to the left of the ultra-right must be understood with the fact in mind that the Norwegian ultra-right party, the so-called Progressive Party, had shown increasing gains in the opinion polls during the preceding years and had become the third largest voting group in the country by 1988-89. National elections were coming up in September 1989. Except for the parties to the left of the Social Democrats, all of the major political parties were now making a run for it to prevent the ultra-right from winning more votes.
The three steps briefly outlined here stimulated each other. The police sent out new bulletins on the need for restrictions on leaves, furloughs, etc. This gave the mass media more to report on and the politicians more to comment on. For several weeks the three steps functioned as a totality - you might say as a typical, mounting moral panic of interacting forces. The results soon became apparent. During the autumn of 1988 the Social Democratic minister of justice instituted more control in the prisons and new and more restrictive rules on leaves, furloughs, and the like. The new rules were to enter into effect as soon as possible.
Somewhat later, in March 1989, a prisoner sentenced for murder and serving time in a special treatment section of a national prison, raped and killed the female guard who was accompanying him on a few hours leave from the prison. The leave had been granted as a part of the treatment programme for the prisoner in question. It is hardly necessary to detail the public reaction. Again, the police, the mass media and representatives of a broad spectrum of political groupings participated in a major public outcry. The rape and murder were reported in the greatest possible detail on the front pages of the newspapers and on the television screen. New "angles" were continually found so that the incident was kept publicly alive throughout the spring. But the sequence of events is important. The rape and murder did not come first. The completely harmless and undramatic escape of the drug dealer from a birthday dinner - the man simply left the restaurant - coupled with the entirely lawful leave granted to the liquor smuggler, came first. If the sequence had been reversed, the media treatment, and the ensuing outcry, would have been more understandable. Rape and murder are the most serious criminal acts we have. The media treatment and the frenzy, however, commenced and escalated around events which exposed the public to no danger whatsoever.
At no point did the politicians avail themselves of the opportunity to look at facts of a more general kind concerning leaves and furloughs. As a matter of fact, in 1988, no less than 20,492 short-term leaves, in which the prisoner leaves the prison for a few hours accompanied by personnel, were granted throughout the Norwegian prison system. Of these, 99.7 per cent were concluded without registered misconduct. During the same year, 13,613 furloughs, in which the prisoner leaves the prison for several days, usually alone, were granted. Of these, 96.8 per cent were concluded without registered misconduct. Only 0.2 per cent of the unaccompanied furloughs were associated with registered criminal behaviour. While the number of leaves as well as furloughs increased between 1987 and 1988, the percentage of registered misconduct went down. The possibility of unregistered crime cannot of course be disregarded in connection with the unaccompanied furloughs. But it may quite safely be concluded that dangerous, violent crime, which of course is the great public fear, almost never occurs in connection with leaves and furloughs. From a wide range of empirical prediction studies we also know that it is almost impossible to predict the extremely few incidents of this kind that do occur. None of this information, which was readily available (the figures above were provided by the Prison Department), was at any point utilised by representatives of the political establishment. They relied only on the mass media presentations of the isolated spectacular incidents.
In short, through interaction between the police, the mass media, and the political establishment revolving around isolated spectacular incidents in the prison system, a long-lasting moral panic was created that has fundamentally altered the political climate in the field of criminal and penal policy. In turn, this altered climate has paved the way for major changes in penal policy, notably changes which increased restrictions and repression within the prison system.
We have piles of reports and books in media research suggesting that the influence of media on attitudes and behaviour is at best complicated, probably overestimated. It appears from a large number of studies that the line from the media to public violence is thin at best. So is the line from the media to fear of crime, and so on. I think much of this research, which is of a distinctly positivistic kind, to a large extent misses the point.
The point is that with the entry and development of television, we have entered something which is equivalent to a new religion. When the automobile arrived around the turn of the century, many people believed it was a horse and buggy, only without a horse. In reminiscence of this early perception, we still speak of "horse power". Yet, the automobile was not a horse and a buggy without a horse. It was something entirely new which contained the seeds of an entirely different society. So with television. When television arrived after World War II, some people believed that it was just a newspaper in pictures. Yet, it was more than that. It was an entirely new medium fundamentally influencing the shape and content of the old media. The American media researcher, George Gerbner, has put it succinctly as follows (Gerbner and Gross, 1976):
"[The point is a concept of ] broad enculturation rather than of narrow changes in opinion or behaviour. Instead of asking what communication "variables" might propagate what kinds of individual behaviour changes, we want to know what types of common consciousness whole systems of messages might cultivate. This is less like asking about preconceived fears and hopes and more like asking about the "effects" of Christianity on one's views of the world or - as the Chinese had asked - of Confucianism on public morality."
The parallel drawn with religion should be taken as more than a metaphor. Our relationship to television has several of the characteristics of the relationship of the faithful to the Church. The British media researcher, James Curran, has put it this way, in functional terms (Curran, 1982):
"The modern mass media in Britain now perform many of the integrative functions of the Church in the middle ages. Like the medieval Church, the media link together different groups and provide a shared experience that promotes social solidarity. The media also emphasise collective values that bind people together, in a way that is comparable to the influence of the medieval Church: the communality of the Christian faith celebrated by Christian rites is now replaced by the communalities of consumerism and nationalism celebrated in the media "rites" such as international sporting contests (that celebrate a collective identity of consumers). Indeed, the two institutions have engaged in some ways in very similar ideological "work" despite the difference in time that separate them... The modern mass media have [for example] given, at different times, massive and disproportionate attention to a series of "outsiders"... comparable to the hunting down and parading of witches allegedly possessed by the devil by the medieval and early modern Church..."
Curran ends with the following words:
"The medieval Church masked the sources of inequality by ascribing social injustice to the sin of the individual; the modern mass media tend, in more complex and sophisticated ways, to misdirect their audiences by the ways in which they define and explain structural inequalities... The Church... offered the chiliastic consolation of eternal salvation to "the meek (who) shall inherit the earth"; the media similarly give prominence to show-business personalities and football stars who, as "a powerless elite", afford easily identifiable symbols for vicarious fulfilment... The new priesthood of the modern media has supplanted the old as the principal ideological agents building consent for the social system."
In terms of form we are in the midst of a crucial transformation from an emphasis on the written message towards an emphasis on the picture. The picture defines what is true and false, and what actually happened, as if staging did not exist. This emphasis on the picture implies a fundamental change in the West. This change also affects the modern press, for example through the "tabloidisation" of the newspapers, with large "on the scene" pictures, large punchy headlines and brief texts. We are living in a "viewer society" (Mathiesen 1987). Michel Foucault's notion of a "panoptical" development, in which the few see and survey the many, is paralleled by a contrasting but functionally related "synoptical" development, in which the many see, survey and admire the few.
In terms of media content, we are in the midst of a parallel change towards entertainment. Even the most serious news are given an "entertaining slant". Writing is still with us, to be sure, as are serious analyses. But in terms of tendency, public news space is predominantly filled with "infotainment".
Now, what has this to do with prison growth? Quite a bit, I think. I am of course not suggesting that the development of the mass media is the only factor behind prison growth in Western countries. I am, however, suggesting that the development of the mass media described above opens up for prison growth. It dismantles the defenses which otherwise might be mustered against escalation and for de-escalation.
Three major and related consequences of this development may be pointed out.
Firstly, penal policy has become much more of a "commodity" than was the case a few decades ago. Penal policy today is governed much more by "news" that is saleable for the media and by what is marketable political opinion in the media. One might say that political marketability is part of Western democracy. However, considering that in the field of penal policy the politically marketable is founded on highly indirect, selective and skewed information filtered through the mass media, its alleged democratic character becomes suspect to say the least. The commodity character of today's penal policy explains the erratic repressiveness and sudden rounds of escalation of penal measures which is so characteristic of contemporary decision making in the area.
Secondly, in parallel with the first change, a change has also occurred in the type of legitimation sought by those who make penal policy decisions. Some decades ago, one could say that legitimation at least to some extent was grounded in principles about the rule of law and similar values. These principles could open the way for many kinds of policy, but principles they were nevertheless. Today, legitimation seems to be almost purely opportunistic: it is grounded in concerns about what "goes" in the mass media and among voters.
Thirdly, a change has also occurred in the nature of public debate over penal policy. The more theoretical approach and the search for principled legitimation some decades ago favoured what Jürgen Habermas called communicative rationality in the debate. It was possible to argue in a truthful manner, with relevance and with sincerity, and such argu-mentation was given at least some hearing at the decision-making level. Today, communicative rationality seems to be in retreat. More than before, communicative rationality lives in the secluded corners of the professional journals and meetings, while the public debate, flooded as it is with dire warnings by the police and sensational crime stories and, most significantly, by opportunistic political initiatives in the context of burlesque television shows called "debates", is predominantly characterised by the rationality of the market place.
What I have said here points to a rather bleak immediate future. I think this is a realistic assessment. But the fact that penal policy is developing for the worse, is no reason for giving up resistance. In contrary, it is rather a reason for offering resistance.
That a reversal may take place is more than wishful thinking. Indeed, history teaches us that most major social and policy changes were deemed totally unrealistic by a large majority of experts almost until the day they took place.
By way of conclusion, let me briefly mention one possible line of action in view of the mass media situation described above.
The point is to contribute to the creation of an "alternative public space" in penal policy, where argumentation and principled thinking represent dominant values. In the area of penal policy, the development of an alternative public space could be facilitated by three ingredients.
We have tried to do some of this in KROM, the Norwegian Association for Penal Reform, which is a strange hybrid of an organisation, with a membership of intellectuals and prisoners sharing a common cause (Mathiesen, 1974, 1995). KROM organises large conferences on penal policy every year with wide participation from the whole range of professions and agencies relevant to penal policy, and many prisoners. It also organises regular seminars. Thereby, we try to create a network of opinion and information transgressing the formal and informal borders between segments of the relevant administrative and political systems, between concerned laypeople and academics. The objective is precisely to create an alternate public space which in the end may compete with the superficial public space of the mass media.
Compared to the functioning of the mass media, our network has the advantage of being based on the actual and organised relationships between people. The public space of the mass media is weak in that sense. Indeed, it is unorganised, segmented, splintered into millions of unconnected individuals - this is its truly mass character - and equally segmented into thousands of individual media stars on the media sky. This is the Achilles' heel of the public space of the media, which we try to turn to our advantage.
Networks of opinion and information bringing people together represent one line of thinking and working. There are obviously others. The objective of limiting prison growth and turning escalation into reduction requires them all.
A full version of this paper, including a list of literature, has been published under the same rubric by: The Sentencing Project, June 1995, Washington DC. Contact with the author: Prof. Thomas Mathiesen, Instituttet for Rettssosiologi, University of Oslo, St Olavs plass 5, N-0165 Oslo; Tel: +47/22 850116; Fax: +47/22 850202.