Chapter 6. The hidden curriculum
Educationalists often talk about "the hidden curriculum". This is the message that is transmitted through the educational system without thought or design -- indeed, without anyone necessarily being aware that it is being imparted. In schools the message may be that the most valuable, the most important knowledge in life is to be gained from books and, conversely, that those things which are self-taught are of less value. It can be that there is a correct solution, and only one solution, to most problems, and that this is to be found in text-books, or in the teacher. It can be the message that the basic way of learning is to gather into groups of equals, under the directorship of one, unequal, who knows the difference between right and wrong. It can be the belief that there are winners as well as losers in every system, often divided into standard groups according to directives from the authority. The winners will be rewarded, both in and out of school, whilst the losers lose everywhere. And it is the belief that the aim of scholarship is not learning for learning's sake, but to gain reward.
6.1. Crime is not important enough
The hidden message of neo-classicism lies first and foremost in the emphasis on the overwhelming significance of the criminal act. The violation of the law, this concrete action, is of such importance that it sets the whole machinery of the state in motion and decides in almost every detail everything that will subsequently take place. The crime -- the sin -- becomes the decisive factor, not the wishes of the victim, not the individual characteristics of the culprit, not the particular circumstances of the local society. By excluding all these factors, the hidden message of neo-classicism becomes a denial of the legitimacy of a whole series of alternatives which should be taken into consideration.
Such a system becomes in fact a rejection of all those other values which should surely be included in this most important ritualistic display of state-power. Our criminal policies should reflect the totality of the basic values of the system. It is an affront to my values, and I think to many people's values, to construct a system where crimes are perceived as so important that they decide, in absolute priority to all other values, what ought to happen to the perpetrator of a particular crime. What does a neo-classical scale say about the value of kindness or of mercy? What about those offenders who have suffered so much beforehand in life that they, in a way, have been punished long before they committed the crime they now have to be punished for. What about the difference between the poor thief and the rich one, the brilliant and the stupid, the well-educated and the uneducated? I do not know. But I do know that I cannot accept a system for the ranking of values which by implication makes all these distinctions -- and thereby the values they express -- of negligible importance. A system that allows itself to be directed solely by the gravity of the act in no way contributes to a satisfactory set of standards for moral values in society. Neo-classicism solves some of the fundamental problems of priorities by simply ignoring them. It has thus an additional important, but again false, message: the world is simple, and all its sins can be squarely and clearly classified and ranked in advance.
6.2. Blaming individuals, not systems
The simplifications of neo-classicism do also lead attention towards individuals rather than towards social structures. Greenberg and Humphries (1980) clarify this in their analysis of the political consequences of the fixed sentencing reform (pp. 215-216):
. . . a just deserts philosophy focuses attention on the individual perpetrator alone. If I lose my job because the economy is in a state of contraction and then steal to support myself and my family -- or if I am a juvenile and steal because the state has passed child labor legislation -- or if I strike out in rage because the color of my skin subjects me to discrimination that reduces my opportunities -- the just deserts model simply indicates that I should be punished for my wrongful act, though perhaps not as severely as I would be at present. One need not deny individual responsibility altogether in such cases to see that, in placing my culpability and the punishment I should receive at the center of attention, other topics are pushed to the periphery: the dynamics of the capitalist economy; the manner in which it allocates benefits and injuries among classes, races, and sexes -- and in so doing generates the structural conditions to which members of the society respond when they violate the law; and the way class interests are represented in or excluded from the law. All these are neglected in favor of an abstract moral preoccupation with the conduct of the individual offender. But it is on precisely these excluded issues that a movement for radical political change must focus. The just deserts model interferes with this task, not merely by giving unduly abstract answers to the questions it asks (answers that neglect the social situation of the criminal actor), but even more by choosing to ask the questions it does.
6.3. Pain is not kind enough
Worse than the importance given to crime and individual blame is the legitimacy given to pain. Pain, intended to be pain, is elevated to being the legitimate answer to crime. But I learned in school, through the non-hidden curriculum, that the best answer was to turn the other 'cheek to him who struck me. Highly regarded solutions such as non-reaction, forgiveness and kindness are pushed into obscurity in the neo-classical simplicities. Neo-classicism attempts to create clarity and predictability. The system wants to keep the judge strictly controlled through specified laws, and thereby prevent arbitrariness. This makes it necessary also to specify the punishments. The detailed specifications represent an efficient protection for the criminal. But these specifications represent a heavy armour. The most doubtful aspect of the hidden curriculum reveals itself just here. Neo-classicism presents punishment as the inevitable solution, as a matter of course, by making it the only, invariable, alternative. Treatment ideology led to hidden punishment, secret infliction of pain, by pretending that cure or therapy was offered. But the new ideology punishes in the name of punishment. It makes punishment legitimate and unavoidable. I can well understand the old protagonists of treatment who exclaim with disgust: see what you have created, all of you destructive sociologists/criminologists in combination with human rights lawyers. Our ideas of treatment, they will admit, were often abused: they were often more words than realities. But ideas of treatment and their materialization also reflected values. Ideologies of treatment gave priority to many of those values you can now see fading away in the new classical rigid over-simplifications.(1) The reproof is justified. This does not mean that the pendulum should swing back to the old trend; but it does mean that the ideology of treatment, with its own vital, but often hidden, message of compassion, relief, care and goodness, should be taken seriously. The infliction of pain could be accepted in the treatment ideology, but only as a link in a series of events which, in the long term, would improve the lot of the sufferer. That the pain inflicted was too great, and that it often took place with false aims, I need not enlarge upon here. But the ideology -- and the acts -- also contained realities of pain-reduction. Tony Bottoms (1980, p. 20) puts it this way: "The rehabilitative ethic, and perhaps still more the liberal reformism which preceded it, was an ethic of coercive caring, but at least there was caring".
Protagonists of treatment in countries that have never been through the stages of treatment ideology do often these days scold their Scandinavian colleagues for letting them down. They have attempted to humanize their penal systems by pointing to treatment in Scandinavia. In the meantime, the Scandinavians declare treatment dead, and thus make it completely impossible to modify old fashioned unkind penal systems.
In an attempt to counteract some of this damage let me just add: Treatment is out of fashion. But not all treatment. What has gone, at least in Scandinavia, is "treatment against crime", measures initiated to change the criminal tendencies of a particular person. It is the credibility of measures of control, most often disguised infliction of pain, that has vanished, but not the credibility of treatment or care of sick or suffering people. Prisons are filled with people in need of care and cure. Bad nerves, bad bodies, bad education -- prisons are storing houses for deprived persons who stand in need of treatment and educational resources. Those fighting "treatment for crime" are of the opinion that humans should not be sentenced to imprisonment to give society the opportunity to treat them. But if human beings are in prison to receive punishments, they ought to get a maximum of treatment to improve their general conditions and soften their pain. Treatment for crime has lost its credibility. Treatment has not.
With the breakdown of the ideas of corrective treatment in criminal law, and the advance of neo-classicism, we have arrived at a most serious situation in our country, where the respectability of inflicting pain has been reinstated. We inflict pain that is intended to be pain, and we do so with a clear conscience.
6.4. Neutralization of guilt
Neo-classicism allows us to do this with a particularly good conscience. After all, it is not we, the power-holders, who bring these things about, but the lawbreaker himself. An automatic connection has been created between crime and punishment whereby, once the crime has been classified, the measure of suffering to be inflicted has also largely been decided. It absolves the individual executor from any kind of personal responsibility for the infliction of suffering. It is the criminal who first acted, he initiated the whole chain of events. The pain that follows is created by him, not by those handling the tools for creating such pain.
This whole tendency is strengthened by the overwhelming interest shown in neo-classical literature in the control of pain delivery, rather than in the pain itself. To regulate pain becomes more important -- more in the centre of public and scholarly attention -- than to use pain. Regulation of pain becomes so important that the necessity of inflicting pain is more or less taken for granted.
Regulation is given so much attention that little attention is left for discussing the qualities of the regulated commodity and whether this commodity actually is all that necessary. This becomes a new way to create distance to pain. Sufferings disappear in a fog of regulatory mechanisms. Somewhere, far behind, is an activity of dubious repute. But we do not come quite close to it because we are so intensely preoccupied with building up regulatory mechanisms.
6.5. The strong state
The neo-classicists also have a hidden message when it comes to the image they present of the state. Their system presupposes the existence of a strong state, and they strengthen that state even further. Their system is very far from one where the parties feel their way through constantly changing solutions adapted to the needs of the present situation. Their questions are not of the type: Is this really an act that ought to be labelled crime . . . what would be the consequences of perceiving it as stupidity, youthful horseplay, or maybe exceptional heroism . . . are no solutions other than punishment possible . . . what about compensation, or maybe some cooperative activity? With neoclassicism it is all a question of pre-established laws, equally binding for all human beings in all situations. As a safeguard against arbitrary decisions, by state or despot, the laws must be firm. But it seems evident that this safeguard at the same time constitutes a barrier to alternative solutions.
The Scandinavian advocates for the recent blend of neoclassicism and general prevention are quite clear on this point. They might differ considerably in their views on the relative merits of capitalism or Marxism, but they have interesting similarities in their views on the state. Johs. Andenæs gives us a glimpse of his conception in his most recent article on general prevention. He says: "If one looks at law-making and crime control as one large piece of machinery with the task to direct the behaviour of the citizens, then . . ." Klaus Mäkelä (1975) concludes with a statement that the purpose of the penal law is not limited to the prevention of crime. Its purpose is in addition to "reproduce the official morals and thereby itself" (p. 277). Inkeri Anttila (1977) states that the penal law committee emphasized that the penal law system could not be the only or even the major means for directing the citizens' behaviour in accordance with the goals of official policy (samhällspolitikens målsättningar). But the system has still, according to the committee, a basic function of clarifying the content of the central prohibitions and their limits while at the same time expressing the authoritative denunciation by society of disapproved acts.
At first sight the situation appears different in the USA. The psychoanalyst Willard Gaylin and the historian David Rothman have a joint and very emotional introduction to the von Hirsch report (1976):
If progressive reformers shared a basic trust in the state, more eager to involve its power in the society than to limit it, we as a group shared a basic mistrust of the power of the state. At the least we suspected that discretion might cloak discrimination and arbitrariness. We were certainly not prepared, a priori, to construct a system in which the benevolent motives of the administrators were sufficient reasons to cloak them with power. (p. XXXII).
But when we go into the report, and Gaylin and Rothman were both members, quite a different picture emerges. Here it is described how that power, taken away from the administrators, is to be used in their combined system of classicism and deterrence. For example, when it comes to the question of the level of punishments:
The difficulty is the absence of data: the deterrent impact of an untried scale of penalties is not known. It will be necessary to choose the scale's magnitude on the basis of surmise -- on a best guess of what its deterrent effect is likely to be. Once a scale has been implemented, with its magnitude chosen in somewhat arbitrary fashion, it can then be altered with experience. If the magnitude selected leads to a substantial rise in overall crime rates, an upward adjustment can be made (within the upper bounds of commensurate deserts). If no such rise results, it would then be appropriate to experiment with further reductions diminishing the scale's magnitude in stages and observing whether any significant loss of deterrent effect occurs. (pp. 135-136).
A system is created where the whims of the administrators are exchanged for an enormously powerful, simple and centralized system of state control. Neo-classicism, as expressed in the spectrum from Ervin Goffman in the von Hirsch committee to Police Chief Joseph D. Mcamara in the Twentieth Century Fund Task Force, has created a system that both needs and strengthens a strong centralized state.(2) Their Scandinavian parallels are in the same situation.
The defeat of treatment ideology for crime and its practice was a necessary first step. It cleared the ground and brought some severe abuses of power against the weak to an end. The neo-classical school, with its rigid system for demanding a year for an eye and three months for a tooth, was probably both unavoidable and on balance a good second step, at least until such a system became law. The simplicity and rigidity in neo-classicism makes it relatively easy to see what it is all about. When guilt, recidivism, and aggravating as well as mitigating circumstances have been quantified, the remainder is simple arithmetic. But when we do see it all, and particularly when we see it in a system that claims to be there to establish a ranking order of values, then I must admit that I am very far from being happy. That society is not, by choice, my society. It is a centralized, authoritarian state which, in the eagerness to create equality, has to block all those softer values from being considered at all. As an alternative to this we must create arrangements to enable us to cope with the task of re-establishing a situation in accordance with the total value pattern within the social system.
1. I do fully agree with Stan Cohen (1977) when he states: "The much maligned humanitarianism which has been used to shield the otherwise unjustifiable positivist goal of 'treating' criminals, should not itself be obliterated. Once upon a time it was 'radical' to attack law, then it became 'radical' to attack psychiatry. As we now rush back to the bewildered embrace of lawyers who always thought we were against them, we should remind ourselves just what a tyranny the literal rule of law could turn out to be."
2. It all seems to be a replication of the Becker/Gouldner debate from the late sixties. That debate started with an important presidential article by Howard Becker (1967) on "Whose side are we on?" Becker declared himself clearly on the side of the underdog, fighting prison officers, guards, administrators and bureaucrats. Al Gouldner's (1968) caustic comments were that the unintended consequences of the defeat of the middle men would be more power at the top.