214 1866 came into force, marked a decisive shift towards imprisonment.^'^ Until 1870, corporal punishments had outnumbered imprisonment sentences; after 1870, imprisonment rapidly took over. Whereas imprisonment in 1864-1869 was, on the average, used only seven times a year, in 1870—1875, 109 prison sentences per year were given. Moreover, the absolute number of death sentences reduced drastically: when in 1864-1869, 66-88 death sentences were given each year, the corresponding figures for 1870—1880 fluctuated between 20 and 44. Whether imprisonment meant that the system became less or more severe cannot be decided here.-^ It is clear, however, that on the individual level the penal measures became less drastic and less severe during the nineteenth century, as the death penalty, and later banishment, fell into disuse and imprisonment as the main sentence took over. In this respect, the years 1826 and 1870 are important landmarks. It could be presumed that as long as severe sanctions were possible — or, as in cases of homicide, they were the only choice of punishment for the court - the courts would have been reluctant to sentence on the basis of circumstantial evidence only. Moreover, as we have seen, the first signs of a break in evidential theories seemto appear in the 1830s. On closer inspection, however, the hypothesis does not explain the emergence of free evaluation of evidence satisfactorily. First, even though death sentences were not given after 1826, the subsequent banishment to Siberia was still, undoubtedly, considered a very severe punishment^7; as before, the possibility of a shorter sentence, enforceable in the Finnish prison of Sveaborg, on mitigating factors was at the courts’ disposal and frequently used. Therefore, it is not likely that the courts would have used convictions considerably more easily after 1826. Second, the decisive break in evidentiary theories appears to have taken place some years before the sanctioning of the statutes of 1866. It is, therefore, unlikely that the courts would have begun to turn to free evaluation of evidence because they now could use imprisonment. It is more likely, as I wish to showbelow, that the shift towards the free evaluation of evidence was 7-* In the 1860s, a comprehensive network of prisons began to be built in Finland. Backman 1989 pp. 82-83; Pajuoja 1993 pp. 12—24. Blomstedt 1964 p. 492; Lappi-Seppälä 1982 p. 136. The death penalties given were all commuted, of course. 76 On the theme, abundant literature exists. For Kekkonen and Ylikangas, the turn to imprisonment as the main sanction came to mean a significant reduction in the sanction level and can be attributed mainly to the reduction of social differences as Standestaat evolved into a bourgeois capitalist state. See Kekkonen - Ylikangas 1982 pp. 47-62, likewise Christie 1968. Most authors see the birth of the prison sentence as the central feature that characterizes the modern penal svstem, but some of them disagree on the meaning of imprisonment to the sanction level. For many significant scholars such as Foucault, although the severity of sanctions may have lowered, the intensitv and effectiveness with which a modern penal systemworks makes it doubtful to talk about a general lowering of sanctions. See Foucault 1970 and Cohen 1985. 77 In practice, banishment to Siberia often equaled death, Juntunen 1983 p. 175.
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