Preliminary Programme

When the 1930 Penal Code (the Rocco Code) and the corresponding Code of Criminal Procedure had been enacted and then promulgated, Italian jurists and legal scholars asserted Fascist Italy’s international preeminence in the field of “modern” criminal law. Italian commentators described and dissected foreign penal and procedural codes for an Italian scholarly audience, comparing them favorably or unfavorably to Italy’s (depending on how closely they resembled the Rocco Code) and touting evidence of Italian influence in those codes recently revised. In addition, experts made the case abroad for Italy’s innovative and “uniquely Fascist” codes, in foreign legal journals and through Italian participation in international congresses and conferences on crime and penology.

The 1930s were an enormously active period – not just in Italy – for penal reform, for rewriting Penal Codes, and for thinking on the part of criminologists, legislators, and social scientists about the purposes and methods of punishment, and about the nature, causes of, and responsibility for crime according to new scientific principles. There was also a widespread popular interest in crime and how it “worked” (that the 1930s was the “golden age” of mystery writing is no coincidence). Italian experts, however, saw (or claimed to see) influences traveling in one direction only: from Italy outward. The Italian – and Fascist – approach to crime, procedure, and punishment was viewed (from Italy) not only as the solution for that country or appropriate for a totalitarian state, but also as an international model. That is, Italian jurists and legal experts consciously perceived their role in the international penal reform movement as a didactic one. This paper considers Fascist Italy’s interactions with the international legal (penal) community in two related aspects: interpretations of foreign reforms and codes against an Italian benchmark, and representations, both at home and abroad, of the Italian approach. (Show less)

In the Fascist (Rocco) penal code of 1930, jurists introduced a new form of punishment in Italian criminal law: security measures. Indefinite in length and preventative in scope, these sanctions gave magistrates unprecedented power in the courtroom. In some cases, judges could order the preventative confinement of “socially dangerous” offenders who had already served a prison sentence for their criminal misdeeds; in other cases, usually against defendants acquitted in court or otherwise declared legally not responsible, they could prescribe preventative custody in lieu of incarceration. As such, preventative security measures were to work in tandem with traditional repressive penalties in order to strengthen society’s defenses against recidivism in new and dynamic ways. In the eyes of historians of Italian criminal law and criminology, security measures were significant for still other reasons. For one, they represented one of the Rocco Code’s most “fascistic” features. They also confirmed the preeminence of the “positivist school” of criminology in Italian (and Fascist) juridical thought. More generally, according to historians, security measures continued the legacy of Italian exceptionalism in penal law. These claims, I will argue, need to be rethought. My paper proposes to do what the existing scholarship has not. First and foremost, it will examine security measures not as a “fascist” innovation, but as a penal institution with a long history on the Italian peninsula. It will also investigate them not as a “triumph” of positivist criminologists, as historians have long suggested, but as the product of a half-century of legal and legislative debates in which positivists often played only a minor role. Most importantly, my paper will analyze security measures not in a purely Italian context, as the existing scholarship has done, but in a wider international one. By reassessing the Rocco Code’s security measures in a transnational context – and specifically in connection with the concurrent international penal-reform movement – my paper will challenge conventional assumptions about the “fascistization” of Italian criminal law. (Show less)

As evidenced by thousands of chilling memoirs and hundreds of articles, monographs, and other scholarly works, the vast penal archipelago of the Soviet Union known as the Gulag (Main Administration of Camps) has long been and continues to be an object of intense fascination. Perhaps the most potent symbol of the Soviet repressive apparatus, the Gulag for many epitomizes the cruelties of communist rule and the paranoid need for political control inherent in totalitarian states. Too often forgotten is that the Gulag was the U.S.S.R.’s system of judicial incarceration and that it housed primarily ordinary criminals rather than political prisoners. Viewed in such a light, the Gulag loses some of the particularity that is too heavily ascribed to it by the interpretive frameworks of totalitarianism, Marxist-Leninist ideology, and even “Stalinism.” Concomitantly, restoring to the Gulag its original and primary function as a prison system for criminals allows for placing it in a comparative and transnational framework.

The purpose of this essay is twofold. First, it explores the extent to which Gulag scholars (and to a lesser extent memoirists) have made meaningful international comparisons and chronicled transnational interactions with other prison systems, especially those that crossed the East-West divide. Not surprisingly, some authors have explicitly rejected the idea of comparing the Gulag to prison systems in non-totalitarian states (comparisons to Nazi camps, meanwhile, are plentiful). Most prominent among them, Anne Applebaum identifies the Gulag as “intrinsic” to Soviet governance alone and therefore incomparable to institutions in the democratic West. Other scholars, by contrast, have actively lobbied for making transnational comparisons and, in the words of John Keep, “evaluat[ing] the Gulag phenomenon as a whole and set it in international context.” Yet this latter group of scholars has done little to actually achieve their stated goal. Indeed, most recent works on the Gulag are narrowly focused on the Soviet experience and are ambivalent about extending their gaze beyond the borders of the U.S.S.R.

The second purpose of the present essay is to identify fruitful avenues for comparative and transnational investigation. If the Gulag is to be, in the words of Kate Brown, “release[d] . . . from solitary confinement,” which prison systems or other institutions would prove the most illuminating? Should comparisons be bound by chronological and/or developmental synchronicity, or is the current state of mass imprisonment in the United States, to take one example, an appropriate counterpoint? And are systems of slavery or non-penal institutions of social exclusion (Brown alludes to gated housing communities, for instance) worthy of investigation in comparison with the Gulag? In terms of transnational engagement, the essay explores such topics as visits by foreigners to Soviet penal institutions (and by Soviets to prisons beyond their borders), participation by Soviet criminologists in international conferences, and the experience of foreign nationals in Soviet labor camps. Fruitful comparisons and transnational perspectives ultimately will help define not only the commonalities shared by the Gulag and other prison system, but the particularities which made it distinct. (Show less)

The paper will use the 11th International Penal and Penitentiary Congress, which was held in Berlin in August 1935, as a lens for examining the relationship between Nazi Germany and the international penal reform movement. While we often assume that Nazi Germany was an international pariah almost from the start, the fact that this Congress, taking place more than two years after the Nazi seizure of power, attracted more than 300 foreign participants, including official delegations from fifty countries, shows that this was not, in fact, the case. Drawing on the official two-volume French-language Actes of the Congress, German archival records on the congress’s preparation, conduct, and press echo, and the secondary literature on the international penal reform movement, my paper uses the proceedings of the congress to study both Nazi attitudes toward international penal reform as well as the attitudes of foreign jurists, prison officials, and penal reformers toward Nazi criminal justice.

Speeches by high-ranking Nazi judicial officials, including Reich Justice Minister Franz Guertner, his top deputy Roland Freisler, and Nazi judicial activist Hans Frank, as well as the (highly coordinated) German interventions in the Congress’s debates provide an instructive look at how the Nazis positioned their own penal policy in the international context. Likewise, the debates of the penal reform questions on the Congress’s agenda -- which ranged from the question of humane treatment and education in prisons to the introduction of “security measures” to the application of eugenics in criminal justice -- reveal the remarkable large areas of international consensus (regarding security measures, for instance) as well as the neuralgic points of conflict. Needless to say, the issues that provoked conflict did not pit Nazi Germany against everyone else, but gave rise to different alliances: those who joined Germany in endorsing the introduction of eugenics into criminal justice, for instance, did not necessarily agree with Nazi Germany on the need for severity in prisons.

In sum, the paper will provide a nuanced account of how penal reforms in Nazi Germany -- and, to some extent, also in Fascist Italy -- fit in with the agenda of the international penal reform movement for which the Congress provided a forum. Furthermore, with a view to German legal history, the paper will demonstrate that Nazi legal reforms were neither as isolated from international developments nor as disconnected from the mainstream Weimar reform traditions as is often assumed. Even though Nazi jurists condemned the Weimar penal reform movement as too liberal and humanitarian, substantial parts of the Nazi reforms were drawn from the agenda of this international reform movement. Conversely, even though 1933 most certainly marked a rupture in the history of the international penal reform movement, foreign reactions to legal developments in prewar Nazi Germany were not uniformly hostile but, at least for a while, often quite ambivalent. (Show less)