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1. Punishment In Modern And Postmodern Society
As recently as the 1970s, this research paper would have almost certainly situated punishment in modern society as the culmination of an evolution toward greater rationality and humanity. This vision of penal progress inﬂuenced both reformers and scholars of punishment.
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The past was represented in Enlightenment tracts against bloody scaﬀolds and dark dungeons. The present was embodied in reform oriented prisons rooted in scientiﬁc studies of human behavior. The prison represented a space of public control (as against the tradition of private ‘dungeons’) in which the state could be held accountable for its treatment of oﬀenders. It oﬀered a penalty, the deprivation of freedom, uniquely suited to the core values of modernizing societies (mobility, responsibility, personal gain). Imprisonment was also a punishment that could be set precisely to establish a scale of deterrence, or varied in practice to allow individualized treatment.
The prison did not altogether replace earlier modes of punishment (Spierenberg 1984). Corporal punishment, ﬁnes, and the death penalty, the mainstay of penal technique before the nineteenth century, remained, although in diminished and modernized form. In the twentieth century, new forms of community sanction, probation and parole, were introduced, designed to elaborate the prison’s capacity for surveillance while minimizing its tendency to isolate the oﬀender from the normalizing inﬂuences of the community at large.
The limitations on twentieth century penology were long seen in the context of a future that saw the elimination of residues of private vengeance seeking, and the perfection of scientiﬁc techniques for resocializing ‘delinquent’ subjects. This program, known as ‘correctionalism’ or ‘rehabilitation’, grew from nineteenth-century approaches to moral reform anchored in religion, especially Protestant strands of Christianity. Beginning in the late nineteenth century, this was secularized (if only in some respects) into a social scientiﬁc penology that promised a range of interventions from psychological therapy to community action to secure the normalization of criminal offenders. Even dystopian visions, like Anthony Burgess’s A Clockwork Orange, assumed that authorities would acquire the capacity for transforming the behaviors and motivations of deviant individuals.
Social theorists from Durkheim (1964) to Foucault (1977) saw penal progress as signaling a fundamental break in social organization (Garland 1990). Durkheim suggested that more ‘primitive’ societies were uniﬁed by themes of shared identity expressed in strict penal laws and reinforced in rituals of severe punishments. More modern societies were uniﬁed by a complex division of labor expressed in civil law and reinforced in varied individual relationships. Durkheim’s theory suggested that the proportion of penal to civil law in a particular society formed a rough and ready index of its modernization. Max Weber, writing in the same period, saw in the evolution of prisons and penal law the process of rationalization that he had identiﬁed as the crucial pattern of social change in modern societies (Garland 1990). At the other end of the twentieth century, Foucault (1977) saw the prison as an exemplar of a new technology of power that became more generalized in the nineteenth century, that is the disciplinary organization of space for the purpose of governing potentially unruly masses of people. Although rejecting the humanitarian impulse as the primary motivation behind the rise of the prison, Foucault saw punishment as moving toward forms of exercising power that created fewer economic costs and political resistances. Where Durkheim emphasized the normative integration produced by the division of labor, Foucault saw modern society as evolving subtle forms of surveillance and coercion to establish conformity. Thus, while Foucault rejected the substantive normative optimism regarding ‘progress’ in punishment and society, he recognized the modern approach as distinctive and representative of an increase in the capacity and security of power.
The narrative of penal progress began to unwind in the 1970s (Rotman 1995). Ideas of rehabilitation and deterrence that dominated modern thinking about punishment for more than two centuries have not disappeared, but rather are viewed more skeptically and compete with a broad array of conceptions, some openly directed at vengeance. These developments have not been unique to punishment, but resonate with a growing skepticism about science, rationality, and reformist government that some have identiﬁed with the idea of postmodernity (Beck 1992). While modern punishment evidenced a persistent aspiration to progress beyond itself and to become a form of education, therapy, or pastoral care, postmodern punishment has embraced punishment as a good in itself and as a model for governing in other ﬁelds like education, healthcare, and welfare (Simon 1997).
These changing cultural sentiments are reﬂected in an increase in penal severity throughout many societies since the 1970s (Stern 1998). The United States has been far and away the leader in this new pattern. At the end of the twentieth century, some three percent of adult residents of the United States were in some form of correctional custody, up from one percent in 1980 (Maguire and Pastore 1998). The post-World War II trend toward abolishing the death penalty has also become much more complicated since the 1970s. The post-1989 collapse of Communist governments in Europe and Asia, and the end of Apartheid in South Africa unleashed a wave of abolitions. In the same time period, however, a number of countries that had temporarily ceased executions resumed them (Hood 1996). The United States is again the leading example. After a brief judicially imposed moratorium on executions in the early 1970s (Zimring and Hawkins 1986) the death penalty has returned to use in 38 of 50 states and overall numbers of those executed have returned to the levels of the 1950s.
2. The Origins, Meanings, And Functions Of Punishment
Punishment, as that term is used here, refers to all legally regulated practices intended to denounce, harm, control, or reform speciﬁc individuals convicted of violating a criminal law or comparable norm. This is a broader deﬁnition than that used by many courts (for instance, in the United States), where many kinds of disadvantages or burdens imposed on those convicted of crimes are not considered punishments, including forfeiture of property linked to crime and requirements for certain types of oﬀenders to register their address with police. At the same time, it is a more limited deﬁnition than might follow from popular understandings of punishment which can include illicit acts of vengeance and self-imposed forms of discipline (Hudson 1996).
At the end of the twentieth century a wide variety of penal practices were in use, including the death penalty, imprisonment, ﬁnes, and various forms of supervised release under conditions of limited freedom in the community. Societies vary enormously with respect to the relative proportion of these punishments. Popular sentiment has been growing for a return to penal practices of the past, such as ﬂogging and symbolic markings aimed at shaming the oﬀender.
There is also a growing set of penal practices outside the formal limits of the criminal law. These include forfeiture of property linked to criminal activity, conﬁnement of those deemed mentally abnormal and dangerous (e.g., sex oﬀenders), deportation of aliens deemed a threat to security, and mechanisms to notify private individual and community organizations of the presence of convicted sex oﬀenders in their proximate vicinity. Forms of civil punishment date back to the Middle Ages but have become more common in recent years.
For interpreting trends in penal practices it is useful to distinguish two further terms: ‘penology’ and ‘penality.’ Penology is often deﬁned as the ‘science of punishment’ and can refer to the rigorous study of penal techniques by professionals in both scholarly and institutional settings. While this reﬂects the prestige of science in modern society, it is too narrow to capture the range of nonscientiﬁc discourses about punishment, both earlier and today. Penology here refers to any organized and systematic discourse about punishment. ‘Penality’ is a term that has been applied usefully to thinking about the entire constellation of penal practices and penologies in operation in a society at a particular time (Garland and Young 1983).
Any particular practice of punishment or penology has a genealogy that can in principle be traced back to an origin. Likewise, we can speak of the meaning or function intended for a speciﬁc penal practice or projected by a particular penology. It is safe to assume, however, that any society’s penality will reﬂect a wide range of diﬀerent penal practices, institutions, and penologies with quite diﬀerent origins, meanings, and functions. As the philosopher Nietzsche pointed out at the turn of the nineteenth century, ‘the concept of ‘‘punishment’’ presents, at a very late stage of culture … not just one meaning but a whole synthesis of ‘‘meanings’’’ (Nietzsche 1994, p. 57). This is surely even more true a century later (O’Malley 1999).
Since the nineteenth century, philosophical, legal, and social science writers have ‘cannonized’ four ‘appropriate’ functions of punishment: deterrence, prevention (or incapacitation as it is more commonly referred to today), rehabilitation or reform, and retribution. Deterrence as a systematic theory of punishment or penology originates with the inﬂuential Enlightenment penal thinker Beccaria (1996 ) and was elaborated by Jeremy Bentham (Hudson 1996). Deterrence views punishments as evils that can only be justiﬁed by their eﬀect on the rational calculus of the free and responsible individuals. The ideal of deterrence in this perspective is to threaten just enough ‘pain’ or ‘disutility’ in response to the proscribed act that a rational chooser who considers both the ‘pleasure’ or ‘utility’ of the crime and the likelihood of being caught and convicted will choose to forbear. Deterrence presumes a common perception of the disutility of punishment and what might be thought of analogically as an acoustically consistent social space in which subjects, as it were, receive deterrent signals from the state. Despite considerable criticism over the decades of both of these core presumptions, deterrence has proved one of the most enduring penologies whose logic can be found in recent trends like mandatory sentences.
Reform or rehabilitation means using the punishment process to identify and to transform pathological features in the character or motivation of an oﬀender that have led to the oﬀense, with the goal of reintegrating the oﬀender into the community as a productive (or at least nonoﬀending) participant. Like deterrence, rehabilitation is committed to the possibility of reducing crime by inducing the oﬀender to change his or her pattern of behavior. But while deterrence presumes that oﬀenders share with nonoﬀenders a capacity for rational calculation of utility that the penalty seeks to invoke, rehabilitation assumes that oﬀenders are deviant in their subjective features and seeks to normalize them.
Beginning in the early nineteenth century, reform was associated ﬁrst with religious penitence and later with rigorous military-like discipline, surveillance and control (Rothman 1990, Foncault 1977). The penitentiary style prisons constructed from the late eighteenth century on were designed to support reform through isolation, compulsory contemplation, and intense surveillance tied to rewards for cooperation and sanctions for lack of cooperation. The cellular structure helped frame the individual as the crucial focus of penal art and lent itself to the comparative evaluation upon which modern criminological science has been based.
Twentieth-century rehabilitation took its cue from the rise of scientiﬁc criminology in the same period that emphasized the roots of crime in pathological individual anomalies. While much of the initial scientiﬁc criminology focused on seemingly irreparable biological anomalies (which lent itself to the eugenic aspect of prevention), its ethos and later much of its substance fostered the quasiexperimental approach that guided twentieth-century rehabilitation with its emphasis on individual diagnosis and treatment.
Prevention or incapacitation received systematic treatment in the late nineteenth and early twentieth century in response to the rise of scientiﬁc criminology. Punishment, on this theory, works by making it impossible for a given oﬀender to commit crimes while he or she is conﬁned. In this sense prevention achieves its crime control eﬀects by removing the oﬀender from the community either temporarily or permanently. Earlier in the twentieth century, this was framed primarily in eugenic terms. Imprisonment or execution prevented oﬀenders from passing on criminal traits to future generations. Eugenically oriented preventive penology suﬀered the same cultural decline that eugenics did generally during the second half of the twentieth century, due to its perceived link to the Holocaust and the generally genocidal strategies of the Nazis (Duster 1990). In the 1980s, however, in response to the rise of crime rates that started in the 1960s and the seeming failure of rehabilitation methods, penologists became interested in the incapacitative eﬀect of prisons. On this theory, the crimes an oﬀender would have committed had he or she been free constitute the beneﬁts of prevention, regardless of whether the oﬀender resumes criminal behavior upon release (assuming that imprisonment does not actually lead to an increase in the frequency or severity of crime).
The ﬁrst three of the four common legitimate functions of punishment are often referred to as ‘utilitarian’ because they are justiﬁed primarily by their hopes for reducing crime. A fourth function, retribution, generally is associated with the idea that punishment serves a moral function by inﬂicting suﬀering on those who deserve to suﬀer for having violated the moral rights of another. The core issue in retribution from that perspective is that of proportionality, that is, making sure that the punishment is proportionate to the moral wrongfulness of the criminal act. Retribution is often confused with revenge since both emphasize the suﬀering of the oﬀender and do not emphasize the goal of reducing crime. But while revenge highlights the individual right of the victim to carry out a reprisal, retribution highlights the moral values of society as a whole and views crime as an aﬀront to those values.
Retribution received its most famous and inﬂuential statement by the philosopher Immanuel Kant. Kant was so adamant that punishments be targeted at (and only at) moral desert that he suggested it would be morally necessary to carry out all punishments even if organized society was about to dissolve and had no future concern for the criminal behavior of oﬀenders (Kant 1974). During much of the nineteenth and twentieth centuries retribution was taken to be a powerful sentiment in society, but it received little elaboration from penologists more interested in pursuing utilitarian leads. Only in the last third of the twentieth century, with the collapse of enthusiasm for rehabilitation, did a new penological discourse on retribution revive under the slogan ‘just deserts,’ (Von Hirsch 1976). With severe punishment politically popular in many countries there has been a renewed eﬀort by philosophers and legal theorists to provide new foundations for retribution.
These four oft-repeated functions or justiﬁcations of punishment refer necessarily to the idea of legitimate or appropriate punishment. Many other functions of punishment have been articulated by critics and by sociological observers of penality. For example, sociologists in the Marxist tradition have suggested that the key function of punishment is to help regulate labor markets for the stability of capitalist enterprise (Rusche and Kirchheimer 1968), or to produce obedience to and even loyalty toward exploitive and authoritarian governments (Thompson 1975, Hay et al. 1975). Sociologists in the Durkheimian tradition suggest that punishment has the function of increasing the sense of solidarity among members of community. Others have even suggested that the function of punishment is to produce a class of delinquents convenient for manipulating society from below through the control of informants and provocateurs (Foucault 1977). Such functions are necessarily latent, since making them an explicit purpose of punishment would delegitimize penal institutions. A third kind of function also excluded from modern penal thought is not quite so hidden: punishment should serve as an instrument for private vengeance for the victim or catharsis for the public. As shall be addressed later, ‘populist punitiveness’ (Bottom 1995) has become a major feature of contemporary, postmodern penality.
It is tempting to treat the history of modern punishment as a shift in dominance among the four justiﬁcations. Deterrence seemed to prevail for much of the nineteenth century, followed by rehabilitation, then a resurgence of retribution, and by the end of the twentieth century, by prevention. While helpful in capturing moments of shifting power within the overall eﬀort to coordinate and control penality at any one time, this approach is likely to disguise the signiﬁcant practical overlap between the established functions and to cut oﬀ observation and analysis of diﬀerent logics entering the contemporary ﬁeld of penality. Likewise, the general discussion of the four functions treats them as eternal verities rather than as a cluster of responses to a speciﬁcally modern framing of the problem of punishment since the eighteenth century. Enlightenment critics attacked monarchical penality as both excessive and ineﬀective. They set out to develop penal techniques that were simultaneously appropriate to the new status of individuals as moral if not political equals while eﬀectively checking crime. Each of the four major functions of punishment oﬀers a vision of how punishment can provide crime control eﬀectively or at least in a way that is consistent with the political status of the individual as a free subject.
3. The Triumph Of Modernist Penology
In the aftermath of the Enlightenment and the age of Revolution, penology was largely a debate between proponents of deterrence, primarily lawyers and politicians who saw the whole population as the primary subject of penal sanctions, and proponents of normalization who saw the individual oﬀender as the subject. By the 1920s establishment opinion was well set in favor of increasing the rehabilitative capacity of the penal system, even at the expense of deterrence. The ubiquity of three particular penal practices reﬂects the spread of this approach. Juvenile justice was the ﬁrst great step in a global pattern toward reform and rehabilitation followed by the most advanced societies in the late nineteenth and early twentieth centuries (Rothman 1980, Garland 1985). In creating a distinct penal system for youth, these societies reﬂected both the inﬂuence of scientiﬁc ideas on penal practice (the recognition of adolescence as a distinct phase of life was being promoted by the rising ﬁeld of psychology), and the belief that at least some oﬀenders should be handled in a nonharmful way. Juvenile courts, the heart of these juvenile systems, in turn showcased two other features that would become synonymous with modernist penology, probation and the indeterminate sentence.
The crucial legal invention of probation was the ‘probation oﬃcer,’ an agent of the court who presumably gathered knowledge of the oﬀender’s individual circumstances by conducting close research into the oﬀender’s biological, psychological, and sociological circumstances. As a punishment for both minor and serious oﬀenses, probation subjected oﬀenders to the supervision of a probation oﬃcer, charged to direct their rehabilitation and empowered to enter their homes, to search them, to interview their neighbors and co-workers, and to arrest them for violations. The indeterminate sentence meant that most of those convicted of serious crimes like robbery or assault were given a formally quite lengthy sentence with the expectation that an administrative agency, usually known as the ‘parole board,’ would exercise discretion to release the inmate from prison and allow him or her to serve some remaining years under probation-like supervision in the community (by parole agents) (Simon 1993).
The establishment of probation and indeterminate sentencing programs reﬂected a willingness to deemphasize both deterrence and retribution as penal values. An indeterminate sentence (e.g., 5 years to life for a burglary) left the potential oﬀender free to dream that he or she would get out in ﬁve. Juvenile justice, probation, and parole all lowered deterrence by diminishing the severity of the expected sanction, since all three involved reducing the amount of time that would otherwise be served in conﬁnement. Moreover, in all three institutions, the legal authority to punish was grafted onto an elaborate decision-making mechanism incorporating not only legal but social and psychological facts.
By World War II most industrial societies operated some version of this modernist penology. The Soviet Union under dictator Joseph Stalin adopted a particularly humanist version of this penology (albeit undercut by the penal violence of the state security organizations). Of the three systems engaged in World War II only the Axis powers repudiated modernist penology, adopting penological ideas consistent with fascism central concerns with racial unity and populist excess (Evans 1996). The victory of the Allies in World War II secured a place for modernist penology in the legal and political structure of the post war world. For the next 25 years the rehabilitative logic of modernist penology enjoyed unprecedented ideological support and investment. As the European economies struggled to rebuild and the United States enjoyed surging aﬄuence, the underlying presumption of modernist penology, that society had a signiﬁcant stake in the adequate adjustment of even its most recalcitrant members, had broad currency.
Modernist penology also enjoyed unprecedented legal support after World War II due to the genocidal use of penal-like sanctions by the Axis powers. As the victorious Allies began to construct an international legal order to assure that such actions would never be repeated (an aspiration that remains unfulﬁlled), modernist penology became a constitutive element. With its focus on the whole circumstance of the individual and on rehabilitating rather than eliminating those the state deﬁnes as enemies, modernist penology reaﬃrmed core elements of human rights ideology and oﬀered a normative check within the penal organs of the state against that organ becoming an adjunct to genocidal crimes of the state. For example opposition groups powerfully resisted the death penalty in the post-World War II international legal order. Abolition and limitation of capital punishment has been a central issue of concern since the Enlightenment, but the Nazi atrocities underlined the potential for execution to become mass state policy.
4. The Crisis Of Modernist Penology
The dominance of modernist penology began to falter across Europe, Australia and North America during the 1970s. Skepticism about the capacities of scientiﬁc penology to control crime, combined with greater demands for government accountability, shattered the consensus that punishment was a kind of technical state service aimed at resocializing oﬀenders (Garland 2001). Punishment as a painful harm to the guilty subject, an embarrassing residue to modern penology, returned as a positive product of the system.
The delegitimation of modernist penology spread initially by the political left that had traditionally supported it. This was an outgrowth of the same human rights ideology that also enshrined modernist penology. The emphasis on equal treatment, especially in the framework set by racial discrimination in the United States, made suspect the tremendous discretion enjoyed by administrative decision makers under modernist penology.
In the 1970s these kinds of considerations led to a wave of critical discourse on modern punishment comparable in quality and consistent in ethos with the Enlightenment writers on punishment. The United States was the primary center for the resurgence of retributive thought that came to be known as the ‘just deserts’ movement. Widely read books by Von Hirsch (1976), the American Friends Service Committee (1972), Frankel (1973), and Fogel (1975), among many others, deeply criticized modernist penology and oﬀered in its place a more transparent and presumably more limited state use of coercion to punish or to incapacitate those who act clumsily and dangerously. The central principles of just deserts were sentences proportionate to the seriousness of the oﬀense, equal punishment of those committing similar oﬀenses, and transparent decision making that would prevent the possibility of the total loss of liberty faced by minor criminals.
By the 1980s and 1990s, the philosophy of just deserts largely had been superceded by two quite diﬀerent penologies that are postmodernist and post-Enlightenment. One is a discourse of punishment as risk management; it represents some continuity with the modernist quest for eﬀective crime control, but in terms that reject the key values of modernism and the Enlightenment. The other is a populist punitiveness (Bottom 1995) or authoritarian populism (Hall et al. 1978) that valorizes victims and the therapeutic potential of vengeance and cruelty (Scheingold 1984, 1991, Sarat 2001).
5. The New Penology And Populist Punitiveness
As modernist penology began to unravel in the 1970s, scholars have begun to describe the emergence of an inchoate successor penology, a ‘new penology’ (Cohen 1985, Feeley and Simon 1992), or ‘managerialism’ (Bottom 1995). This new penology is most apparent in its contrast with the central tendencies of modernist penology. Rejecting the historic modern commitment to the individual as the target of penal justice, the new penology deals primarily in aggregates, dangerous classes, high risk populations and the like. The new penology replaces the objective of transforming criminal deviance with that of managing it. The new penology drops the focus on the social context and interest in penality in favor of the system itself as the primary source of normative order.
These elements can be seen in such recent penal practices as preventive detention of sex oﬀenders, mandatory minimum sentences (Tonry 1995), and super max prisons (King 1999). These practices combine a discourse of risk management and a skepticism about the potential for transforming oﬀenders with a systematic preference for decision-making criteria rooted in forms of knowledge internal to the system itself.
While the ‘new penology’ describes the way professionals within the penal system understand their mission, there is a large gap between the managerialism of this discourse and increasingly emotive populist discourse of punishment which emphasizes vengeance, shaming, and the therapeutic beneﬁt of punishment for victims. Throughout the era of modernist penology popular consciousness about punishment was presumed to lag behind the progressive logic of professionals. With the exception of aberrant regimes like the National Socialists in Germany in the 1930s and 1940s, most modern governments treated penal policy as something that should be shaped by professional concerns with only grudging concessions to popular demands. What is distinctive about the turn in penal policy since 1980, especially in the United States, is the open embrace of populism as an acceptable logic of punishment. This is exempliﬁed by the embrace of the death penalty by virtually all political leaders in the United States and the enactment of expressly emotional laws like ‘Three-Strikes’ (Sechrest and Sichor 1996).
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