101. årgang, 2014

2014 - 101. årgang Nr. 1

1. Peter Garde
Circumcision – Crime or Worship.

The author discusses ritual male circumcision within the context of the criminal law in light of historical developments including recent judgments and subsequent legislation in Sweden and Germany. While currently legal, he argues that circumcision should be criminalized in order to protect the physical integrity of the child. He is, however, not optimistic in regard to the chances of passing such a measure in the Danish parliament.

2. Geir Aas
Women exposed to domestic violence and their experiences with the Norwegian police

In this article abused women from five Norwegian shelters reveal their experiences with the police. Employees at the shelters also discuss the work of the police from their point of view. The central obstacle between the women and the police lies in the very nature of the criminal law, or at least in how the police perceive the law, and the complex story the women wish to report. The police seem to be primarily interested in basic facts regarding the history of abuse, such as when and in what way the women were physically beaten. These facts often represent less significant parts of a women’s story. Mental abuse, which has recently been criminalized in Norway, is not properly included in either the police interview or the police report. Some of the informants also mentioned a lack of continuity in their contact with the police. One of them had to meet four or five different police officers during the long road to trial. Forced to repeat her story to several different agencies, she ultimately wound up talking about the severe abuse she had suffered without showing any emotion. It has been documented that the way in which these women express their tragedy has a significant impact on their perceived credibility. Another common problem typical to their narratives is the time-consuming process from the first police interview until the police reach a conclusion. Some had to wait as much as two years before the case was brought to trial or dismissed. The informants have rather different and contradictory feelings about the legal sanctions brought against their former partners.

3. Peter Dueholm Mathiasen
Virtual items – Can virtual items be characterized or equated as movable objects in a criminal law context? Towards a Theory of the Criminal Justice System

The article discusses whether virtual items can be considered "rørlige ting" (movable objects) thereby subject to protection against, e.g., theft under the Danish Criminal Code. Norwegian, Swedish and Dutch criminal laws are included in the article.

4. Nicolay B. Johansen
The reality of crime – categorical form and substance.

In 2004 Nils Christie declared that "crime does not exist". In the resulting Norwegian debate, at least two diverging positions emerged. Leif Petter Olaussen claimed that crime is a "social reality", while Cecilie Høigård made the proposition that crime is "congealed power relations". In this article, I use the constructivist tradition to analyse the authors’ various positions. Constructions are made of categories, and the ontological status of categories is a problem that runs through the last 1500 years of European thought, at least. I distinguish between three questions in relation to categories and constructivism: 1) Criminalization as a speech act: What does it mean to use this specific category? 2) What characterizes crime as a category? Here I distinguish between the form and substance of crime as a category; 3) How do the category and the social world interchange? Through these sub-questions I create common denominators for the aforementioned positions. I find that what first appears a metaphysical mystery may be understood in simple terms: the different authors disagree on the level of friction of legal norms "in action". Christie considers penal law as basically undetermined. On the other wing, Olaussen’s claim is that crime is basically determined.

2014 - 101. årgang Nr. 2

1. Hedda Giertsen og Torsten Kolind:
Prison Staff Perspectives on Measures Aimed at Inmates with Drug Problems.

Denmark, Finland, Norway and Sweden are similar in many respects. But as Hakkarainen et al. (2006) noted in regard to Nordic drug policies twenty years ago, »sisters are never alike«. This saying also applies to drug policies in the Nordic prison systems. As part of a common project comparing drug policies across the Nordic prison

systems, the following four articles describe staff experiences with measures aimed at prisoners with drug problems. Staff consists of both prison officers and counsellors, who by and large perform different tasks. Prison officers concentrate on security and control while counsellors tend to focus on programs and group sessions. The boundaries between these roles are, however, sometimes blurred. All four articles apply a relational perspective to staff experiences in the prison environment. But they also apply different approaches, and various results appear. The Finnish article finds the staff to be influenced very little by the programs and prison environment while the Swedish article finds just the opposite. The Danish article presents a staff typology that describes modes of adjustment to the prison. Meanwhile, the Norwegian article investigates how various actors within the system cooperate and handle conflicts. Differences are also demonstrated in regard to staff views on the implications of control and the use of sanctions in the programs. Drug treatment measures are organized in different ways in the Nordic systems depending on the way counsellors are employed and the degree of cooperation the prison has with the national health and welfare services. The editorial discusses the relationship between organization and perceptions of drug problems. Prison measures toward drug problems can be seen as a prism that refracts diversity in prison policies and variations between the Nordic countries. In some countries, such measures are seen as contributing to the general prison drug policy, while in other countries the public health and welfare services are in focus.

2. Torsten Kolind, Vibeke Asmussen Frank og Karina Holm
Drug treatment and new institutional identities in Danish prisons.

This article discusses the growth of new institutional identities among prison officers and treatment counsellors following the introduction of drug treatment in Danish prisons. Using qualitative interviews and observations in three Danish prisons, the article examines how the prison’s focus on punishment and control, and the three treatment programmes’ focus on personal development, trust and reciprocal relations, have created new ways for both officers and counsellors to manoeuvre and practice discretion. Counsellors, who are employed by public or private treatment agencies, but work within the prison environment, have introduced a new, »softer« view of the inmates, but have at the same time also adapted their drug treatment programme to the surroundings. For instance, some of the programmes are heavily affected by everyday problems created by incarceration. Counsellors have thus increasingly integrated the control and disciplinary sanctions of the prison into their treatment ideology. Meanwhile, prison officers have found inspiration in drug treatment philosophy and have integrated an increased focus on reciprocal relations with inmates into their work approach. Prison officers have also implemented a more nurturing approach and are increasingly optimistic as to inmate rehabilitation. These changes in the everyday work of prison officers and treatment counsellors serve as examples of how policies are more generally implemented in practice and create new possibilities for discretion.

3. Jouni Tourunen & Teemu Kaskela
Give them a chance!” The social representation of the counsellor’s institutional role in prison-based drug treatment programmes in Finland:

This article outlines how the social representation of a counsellor’s role is construed during interviews: how counsellors rationalize prison-based drug treatment programmes, how they describe their roles and tasks in the implementation of programmes, and how they address control and sanctions related to treatment within the prison context. The article is based on interviews of counsellors both individually and in focus groups, as well as observations of group meetings in drug treatment programmes in three Finnish prisons. The social representation of the counsellor’s institutional role seems very coherent. The counsellors generally confirmed the official rationales heard in the political discourse, but paid more attention to the positive personal consequences related to individual prisoners. They viewed their main role as “giving them a chance”, i.e., helping prisoners to work on themselves. The counsellors did not see any major conflict between control and rehabilitation or any major constraints hindering the implementation of programmes in the prison context. The roles of counsellors and guards appeared to be surprisingly flexible in the Finnish prisons observed, and many of those interviewed had worked in both roles.

The counsellors defined themselves more as prison officials employed by the prison service than as therapists. The social representation of the counsellor’s institutional role confirms the core ideas of penal welfarism: drug rehabilitation is viewed as a crucial means of individual deterrence that serves the rehabilitative function of imprisonment. However, penal welfarism appears to take a new form, borrowing ideas of managerialism and client-orientated thinking. When seeking rehabilitation and changes to their lives, prisoners can utilize their time in prison by participating in accredited, structured, and supervised programmes. Despite this, the rhetoric of the importance of drug treatment programmes still conflicts to some extent with the realities, resources, and practices of everyday prison life.

2014 - 101. årgang Nr. 3

1. Linda Kjær Minke og Rikke Gottrup:
With a snap of the fingers: Involuntarily transfer of prisoners between prisons.

Involuntary inter-prison transfers are very intrusive for most prisoners. Prisoners adapt to prison life both socially and psychologically. Some participate in rehabilitation programs and visits are planned and booked weeks ahead of time. Involuntary inter-prison transfers are used by prison authorities for administrative and disciplinary reasons such as regulation of prison capacity and maintenance of order and security. Transfers may therefore be seen as a strategy for managing prisoners whose behaviour is difficult or disruptive. Official records indicate that there was an average of 669 involuntary transfers per year for disciplinary reasons in Danish prisons during the period 2006-2013. Involuntary transfers due to prison capacity issues are not registered. In 2002 Danish administrative law was amended so as to allow the involuntary transfer of prisoners without prior notice, written explanation or hearing, and without any right for prisoners to access documents relevant to their cases. From a standpoint of legal protection, it is problematic that prisoners can be transferred without apparent reason. This may cause even greater suspicion and distrust of prison authorities, as well as the society as a whole – all of which can be seen as a barrier for successful offender rehabilitation.

2. Iver Huitfeldt:
Judicial reform in Moldova: A study in legal reform.

This article describes work conducted by the Norwegian Mission of Rule of Law.
Advisers to Moldova (Norlam). Norlam is a mission in the programme of “Styrkebrønnen”, a resource group within the Norwegian justice system financed by the Norwegian Ministries of Foreign Affairs and Justice. Norlam is working based on a “Memorandum of Understanding” (MoU) of May 2007 which aims to build competence and increase “the efficiency of the institutions guaranteeing human rights and the rule of law in the Republic of Moldova ...”. Norlam started its work by describing our bases for “judicial and legal reform” in a “non-paper” that was sent to the Ministry of Justice (MoJ); “non” because it was not “official”, thus sparing the MoJ for having to decide on its contents. In this form of assistance it is important not to create unnecessary problems for the host country. The “non-paper” said that in the tension between “tradition and transition”, it was common to resort to legislative changes aimed at meeting international expectations to increase the opportunities for recognition, money and other assistance, but that this oftentimes did not lead to real changes. The problem usually was lack of “implementation” and that the legacy of “the legal culture” prevailed. Already in the meetings when the MoU was signed, we took the opportunity to point out that the sentencing level in criminal cases seemed to be very harsh. Still, we were not very optimistic about being able to take this on. However, in the autumn of 2007 we learned that we might be able to utilize an internal discussion between people close to the President. Inspired by the works of Nils Christie,

Norlam seized the opportunity and in a letter we encouraged the President of Moldova to initiate a reform to lower the sentencing level in the Criminal Code. As part of this activity, Norlam arranged the “Conference on Criminology” with topics like “Geography of Punishment” (the title “stolen” from Nils Christie) containing statistics and diagrams showing the prison population of Moldova compared with selected countries. The implied questions were: In which “moral climate” do you want to live, do you want to belong to the East or the West? There was little doubt what the audience felt about that! Presentations as “Moldova’s Criminal Policy in the Transition to European Standards” and “The Criminal Code of the Republic of Moldova in Transition” showed the way to go. The main point was that the Criminal Code contained a whole range of aggravating circumstances which raised minimum sentences so that rather mundane crimes quickly qualified for Draconian penalties. The code was imbued with detailed criteria that gave instructions on how punishment should be meted out. The thinking was simple: It is the legislature that determines the punishment; the judge shall only “pronounce the words of the law”! Thus, almost nothing was left to judicial discretion. This is not illogical in a legal system where the judge is considered a “servant” of the people and is consequently not allowed to interpret the law. When Norlam arrived, the minimum penalty for a gain of 10,000 Lei – the equivalent of USD 1,000 – was ten years in prison. The result was that Moldova's prisons were filled with inmates serving long sentences for not very serious crimes. And the development was worrisome. While the average sentence for inmates serving terms of imprisonment in 1995 was 5.5 years, this average had risen to 8 years in 2002 and 9.2 years in 2007. Norlam was asked to assist in the sentencing reform ordered by the President and by September 2008 the sentencing level in the Criminal Code had been lowered considerably; in fact 65 percent of the suggestions of Norlam were taken into account. For example, the minimum sentence for murder was reduced from twelve to eight years. This minimum was also applied in cases of murder on “related parties”, i.e. family members. Previously the minimum sentence for this crime was 20 years, because., according to the “logic” of the law, nothing could be worse than killing a family member! But “the socio-logics”, who in practice had to endure such punishments, were not taken into account. The largest group serving this former minimum consisted of women in their 50s, 60s, and 70s. The story usually was that after a long marriage with violence and abuse, they had committed “the ultimate form of Domestic Violence” by having “won the last battle” their spouses now being impaired by alcohol. Even if these women are perpetrators under the law, they are foremost victims, the Moldovan police, social authorities and health care and the society at large having failed to take Domestic Violence seriously. The sight of these women serving completely unjust and pointless punishments in Rusca Women's Prison made a strong impression! Referring to the table in English in the article, the reduction of long sentences after the reform has been dramatic. In 2008 the number of sentences of 15 years or more was 7.1 percent of all sentences, this was reduced to 2.2 percent in 2010, the first full year of the reform in effect.

As shown in the article’s table, the prison population per 100,000 inhabitants declined from 242 in 2007 to 185 in 2013 having stabilized at a somewhat high European level. When Norway engages in judicial and legal reforms in countries in transition, it is an “investment” that cannot be expected to pay immediate “dividends”. However, I think it is justified to say that Norlam has achieved surprisingly good overall results. The current article describes only some of these results. Success the important first year – later teams have followed up – was partly due to fortunate circumstances but mainly because the team was able to sense when and when not to show the “educational finger”, and also was ready to reconsider previous decisions based on ever-changing contingencies of the moment. The team was, in other words, able to “read and understand” the country! The Conference on Criminology and the assistance to MoJ in the revision of sentencing levels are examples of meticulous preparations leading to achievements which initially were quite unexpected!