ABSTRACT
Chapter 2 confronts the perplexing task of explaining the remarkable sixty-year abatement of imprisonment between 1880 and 1940, starting with the years 1880 to 1914. This era of decarceration, a de-centring of the prison, has been remarked upon, but never convincingly explained. It consisted of a falling out of favour of imprisonment and a reduction in the number and length of prison terms. The explanation provided in this chapter includes the reduction in crime and fear of crime in the later Victorian decades, the extension of summary jurisdiction over more indictable offences (pulling cases away from the higher courts, whose sentencing powers were more severe); and the role of the judiciary. The latter, it is argued, was the most important factor in the abatement of imprisonment, if the most difficult one to fathom. Imprisonment appealed to a tariff-minded judiciary, since it could be measured out, graduated in periods of prison time, marking and denouncing the seriousness of the offence. For the judiciary, prison was “real” punishment, unlike probation or other non-custodial measures. Yet the magistracy and High Court judges, encouraged on occasion by the Court of Criminal Appeal, scaled back or recalibrated the sentencing tariff to an inordinate degree over these years. One feature of this judicial activism was the unwillingness to accept those parts of the rehabilitative program that required long preventive or indeterminate sentences.
