"Punishment and Modern Society is an outstanding delineation of the sociology of punishment. At last the process that is surely the heart and soul of criminology, and perhaps of sociology as well—punishment—has been rescued from the fringes of these 'disciplines'. . . . This book is a first-class piece of scholarship."—Graeme Newman, Contemporary Sociology
"Garland's treatment of the theorists he draws upon is erudite, faithful and constructive. . . . Punishment and Modern Society is a magnificent example of working social theory."—John R. Sutton, American Journal of Sociology
"Punishment and Modern Society lifts contemporary penal issues from the mundane and narrow contours within which they are so often discussed and relocates them at the forefront of public policy. . . . This book will become a landmark study."—Andrew Rutherford, Legal Studies
"This is a superbly intelligent study. Its comprehensive coverage makes it a genuine review of the field. Its scholarship and incisiveness of judgment will make it a constant reference work for the initiated, and its concluding theoretical synthesis will make it a challenge and inspiration for those undertaking research and writing on the subject. As a state-of-the-art account it is unlikely to be bettered for many a year."—Rod Morgan, British Journal of Criminology
Winner of both the Outstanding Scholarship Award of the Crime and Delinquency Division of the Society for the Study of Social Problems and the Distinguished Scholar Award from the American Sociological Association's Crime, Law, and Deviance Section
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Punishment and Modern Society
A Study in Social Theory
By David Garland
The University of Chicago PressCopyright © 1990 David Garland
All rights reserved.
The Sociology of Punishment and Punishment Today
1. The problem of punishment today
The aim of this book is simple. It sets out to provide a rounded sociological account of punishment in modern society, showing—at least in outline—how penal processes come to exist in their present form and with what kinds of consequences. To this end it employs the interpretative tools of social theory and the information and insights produced by historical studies, together with materials which are more properly penological.
Such a straightforward project inevitably entails some presumptions which are not quite so straightforward. Most importantly, it presumes that juridical punishment is not the transparent and rather self-evident institution of crime control that it is commonly taken to be. Were this the case, a study of this kind would be rather unnecessary, there being little need to restate the obvious. But in fact punishment's role in modern society is not at all obvious or well known. Punishment today is a deeply problematic and barely understood aspect of social life, the rationale for which is by no means clear. That it is not always perceived as such is a consequence of the obscuring and reassuring effect of established institutions, rather than the transparent rationality of penal practices themselves.
Like all habitual patterns of social action, the structures of modern punishment have created a sense of their own inevitability and of the necessary rightness of the status quo. Our taken-for-granted ways of punishing have relieved us of the need for thinking deeply about punishment and what little thinking we are left to do is guided along certain narrowly formulated channels. Thus we are led to discuss penal policy in ways which assume the current institutional framework, rather than question it—as when we consider how best to run prisons, organize probation, or enforce fines, rather than question why these measures are used in the first place. The institutions of punishment conveniently provide us with ready-made answers for the questions which crime in society would otherwise evoke. They tell us what criminality is and how it will be sanctioned, how much punishment is appropriate and what emotions can be expressed, who is entitled to punish and wherein lies their authority to do so. In consequence, these difficult and troublesome questions no longer arise. They are authoritatively settled, at least in principle, and only matters of detail need to be concluded—details which can be left to experts and administrators in specialist institutions set aside for that purpose.
Once a complex field of problems, needs, and conflicts is built over by an institutional framework in this way, these problematic and often unstable foundations disappear from view. In their place all that is immediately visible are the categories and forms of action which the established institution holds out to us. Through repeated use and respect for their authority, these instituted ways of doing things create their own 'regime of truth' which simultaneously shores up the institutional structure and closes off any fundamental questions which might undermine it. The penal system's very existence helps us to forget that other answers to these problems are possible: that institutions are based upon convention rather than nature. For all these reasons, and for most of the twentieth century, the institutions of punishment have normally been surrounded by a sense of their own appropriateness and transparency. Questions about punishment became a matter for penologists—technical experts whose frame of reference was given by this institutional structure.
But institutions and their regimes are not unshakeable nor beyond challenge, particularly where they fail to serve needs, contain conflicts, or answer troublesome questions in a way that is perceived as satisfactory. And, despite their institutional girding and a historical entrenchment stretching back to the early nineteenth century, a growing sense of doubt, dissatisfaction, and sheer puzzlement has now begun to emerge around our modern penal practices. The contemporary period is one in which penological optimism has given way to a persistent scepticism about the rationality and efficacy of modern penal institutions. This shift of attitude began to emerge towards the end of the 1960s when rising crime rates, growing prison unrest, and a collapse of faith in the rehabilitative ideal combined to undermine confidence in 'penal progress' and the inevitability of 'penal reform'. The new era has been one of continuing crisis and disruption in a penal system which no longer takes seriously the rehabilitative values and ideologies upon which it was originally based. Within this context it is becoming the conventional wisdom of criminologists, penologists, and social scientists that contemporary methods—particularly that of imprisonment—appear increasingly to be 'irrational', 'dysfunctional', and downright counter-productive. Like the crime it is supposed to deal with, punishment is nowadays seen as a chronic social problem. It has become one of the most perplexing and perpetual 'crises' of modern social life, replete with intractable difficulties and disturbing results, and currently lacking any clear programme which could facilitate its reform.
The most celebrated discussion of punishment's 'failure' is to be found in the work of Michel Foucault, who argued that penological failure has been a persistent—and indeed a 'functional'—characteristic of the modern prison ever since its inception. But the same presumption of failure appears in numerous other less avant-garde texts, including the work of the historian Lawrence Stone, one of Foucault's sternest critics. Stone takes it as simply uncontroversial to characterize twentieth-century prisons as Vestigial institutions' which are 'even less useful for system maintenance than an appendix in an individual'. According to this view, which is shared by many, twentieth-century prisons survive 'simply because they have taken on a quasi-independent life of their own, which enables them to survive the overwhelming evidence of their social dysfunction'. And it is not just the prison that is problematic: the contemporary intuition that 'nothing works' extends with only slightly less force to probation, fines, and community corrections.
As explanations of punishment, Foucault's latent-functions approach and Stone's dead-weight-of-history suggestion raise more problems than they solve—as I will try to show in the chapters which follow. But the point of mentioning them here is to indicate the growing conviction among social scientists that the methods of modern punishment are neither obvious nor self-evidently rational; that, on the contrary, they stand in serious need of explication. Where once penal institutions appeared to offer a self-evident rationale, in the late twentieth century they increasingly come to seem less obviously appropriate. Their 'fit' with the social world and their grounding in the natural order of things begin to appear less and less convincing. It used to be that most criticism of punishment's failures and irrationalities was aimed at the past or at the soon-to-disappear present. Each critique was also, in its hope for penal reform, a kind of hymn to the future. Nowadays, punishment appears to lack a future—or at least a vision of one which might be different and preferable to that which currently prevails.
Part of the problem is what Stone calls 'the overwhelming evidence of ... social dysfunction'—the by now well-known catalogue of punishment's inefficiencies (the failure of fines, probation, community corrections, and custodial measures alike substantially to reduce crime rates, the tendency of prison to create recidivists, the high social costs of penologically ineffective measures) and all the apparent irrationalities which seem to be the stock-in-trade of criminal justice. But these 'failures' can only partly explain why punishment seems increasingly problematic. In normal circumstances an established institution can finesse its failures. It can explain them away in terms which do not call into question the foundations of the organization—such as the need for more resources, minor reforms, better staff, more co-operation from other agencies, and so on. Most importantly, it can normally point to a future programme in which these problems will be better managed and the institution will reform itself. All social institutions have a margin of failure or ineffectiveness, but in normal circumstances this will be more or less tolerated without calling the institution itself into question. If the institution is meeting normal expectations and if its overall direction and basic legitimacy are unchallenged, then such failures are of no great consequence.
But in the case of modern punishments—whether custodial or noncustodial—a self-confidence in the established principles and an ability to redefine problems in institutional terms are currently lacking. Throughout the 1970s and 1980s the penal institutions of the United Kingdom, the United States of America, and many other Western nations have experienced a crisis of self-definition. In normal circumstances the administrators and employees of any penal system understand and justify their own actions within an established ideological framework—a working ideology. This official ideology is the set of categories, signs, and symbols through which punishment represents itself to itself and to others. Usually this ideology provides a highly developed rhetorical resource which can be used to give names, justifications, and a measure of coherence to the vast jumble of things that are done in the name of penal policy. Not the least of its uses is to supply the means to explain (or explain away) failures and to indicate the strategies which will, it is hoped, prevent their recurrence. For much of the present century, the term 'rehabilitation' was a key element of official ideology and institutional rhetoric. This all-inclusive sign provided a sense of purpose and justification for penal practice and made punishment appear meaningful for its various audiences. Today, however, this unifying and uplifting term is no longer the talismanic reference-point it once was. Following a sustained critique, the notion of rehabilitation has come to seem problematic at best, dangerous and unworkable at worst. In many jurisdictions the term—and the framework which it implies—has been struck from the official vocabulary. Elsewhere it is used cautiously and without confidence, in the absence of any effective substitute. Penal institutions have thus been deprived of the idiom, and indeed the mythology, around which modern punishment had anchored its self-definition. For nearly two decades now those employed in prisons, probation, and penal administration have been engaged in an unsuccessful search to find a 'new philosophy' or a new 'rationale' for punishment. They have been forced to rethink what it is they do, and to reopen foundational questions about the justifications and purposes of penal sanctions, without so far having found a suitable set of terms upon which to rebuild an institutional identity.
If this were merely a matter of official rhetoric, or of the precise form which penal objectives should take, then we might expect a solution to be more readily available. Penal policy is, after all, a rich and flexible tradition which has always contained within itself a number of competing themes and elements, principles and counter-principles. Thus, over the last century and a half, its key terms have been developing and fluid rather than fixed, producing a series of descriptions—'moral reform', 'training', 'treatment', 'correction', 'rehabilitation', 'deterrence', 'incapacitation'—for what it is that penal sanctions do. But what seems to have come into question now, after the acknowledged failure of the most developed form of correctionalism, and in a period when Enlightenment social engineering has become deeply unfashionable, is a basic principle of modern punishment—namely the presumption that crime and deviance are social problems for which there can be a technical institutional solution. Indeed it is highly significant that the slogan which most marked this crisis of penal confidence was the phrase 'Nothing Works'—a statement which clearly conveys the instrumental means-to-an-end conception of punishment which marks the modern era. Ever since the development of prisons in the early nineteenth century, and particularly since the emergence of a penological profession later in that century, there has been an implicit claim—and eventually a public expectation—that the task of punishing and controlling deviants could be handled in a positive way by a technical apparatus. It seems to me that this basic claim has now been put in question.
The question that arises today is not one of institutional adjustment and reform. It is a more basic question which asks whether the social processes and ramifications of punishment can be contained within specialist institutions of any kind. This is, in a sense, a crisis of penological modernism. It is a scepticism about a penal project that is as old as the Enlightenment with its vision of punishment as one more means of engineering the good society, of organizing institutions so as to perfect mankind. After more than two centuries of rational optimism, even our 'experts' have begun to recognize the limits of social engineering and the dark side of social order. Our engineered world is facing its imperfections and is less optimistic, less confident. In the penal debates of the 1980s, we hear again, for the first time in almost two centuries, the re-emergence of basic moral and organizational questions. Lacking a new vocabulary, and dissatisfied with the modern institution's own terms, much of this discussion has looked back to the period immediately before the modern penal era. Contemporary proponents of 'the justice model' or of 'general deterrence' have revived the liberal discourse of eighteenth-century jurisprudence, raising basic questions about the right to punish, the limits on state power, the responsibility and dignity of the offender, the nature of criminality, the depiction of human nature, and so on. There have also been important attempts to reintroduce questions which had previously been silenced by institutional operations, such as the role of the victim, or the responsibilities of the community in causing and preventing criminality. Notably too, there has been a re-emergence of moral arguments that claim that punitive (as opposed to correctional) measures can be a proper and defensible form of reaction to crime, a form of thinking which has been markedly absent from most twentieth-century penal discourse.
These newly revived forms of thinking about punishment are significant, not because they represent solutions to the current malaise, but because they indicate the extent of it. In returning to the consideration of basic moral and political questions, these discussions indicate the fading of our penal institutions' ability to naturalize their practices and depict the world in their terms. Questions about the meaning of punishment do not, these days, get immediately translated into the established terms of an institutional ideology. They are instead perceived as troublesome and unsettled. And of course in these circumstances, such questions begin to emerge with more and more frequency.
It is not, then, only social scientists who are nowadays led to doubt the grounding and rationale of modern modes of punishment. The very staff of the criminal justice institutions are themselves increasingly perplexed as to what they are about. Consequently, it is not an idle or an 'academic' question that is being pursued when we seek to understand the foundations, forms, and effects of penal measures as they exist today. It is, on the contrary, a pressing practical issue.
Like all books, then, this one is a product of its times and circumstances. The past two decades have been years in which we seem to have come up against the limits of a certain way of thinking and acting in the field of punishment. Like many others, I have been led to reflect upon the roots of penal policy, and its social ramifications, instead of getting on with the job of improving and refining it. Indeed, at a time when penology was marked by sadly diminishing returns, this reflection upon fundamentals has been the abiding fascination of an otherwise narrow and unsettling field of study. The last 10 years or so have seen a sudden take-off in the number of studies in the history and sociology of punishment, no doubt because these forms of research are strongly drawn towards areas which appear currently to be problematic or undergoing transition. Indeed this new work on the foundations of punishment is in marked contrast to what went on before. In the mid-1950s, at the height of the correctional era in the USA, Donald Cressey asked why the sociology of punishment was such a neglected area of study—particularly, he might have added, given the landmark contributions of earlier writers such as Montesquieu, De Tocqueville and Durkheim. Thirty years later and with the benefit of hindsight we can answer that in these years a technical penology, working within the institutions, was able to dominate the field and to limit the range of questions which appeared appropriate or worth while. It was a period of 'normal science', operating in circumstances where the axioms and problems had been authoritatively stated, and all that remained was to work out the details and fine-tune the institutional machinery. Now, however, when penologists have lost faith in the institutional project and have become critical and self-reflective, they are beginning once again to reassess the axioms upon which punishment is based. In this task, social theory and history prove more useful than penology, and increasingly these are the forms of enquiry which are being brought to bear.
Excerpted from Punishment and Modern Society by David Garland. Copyright © 1990 David Garland. Excerpted by permission of The University of Chicago Press.
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Table of ContentsIntroduction
1. The Sociology of Punishment and Punishment Today
2. Punishment and Social Solidarity: The Work of émile Durkheim
3. Punishment and the Construction of Authority: A Reworking of Durkheimian Themes
4. The Political Economy of Punishment: Rusche and Kirchheimer and the Marxist Tradition
5. Punishment as Ideology and Class Control: Variations on Marxist Themes
6. Punishment and the Technologies of Power: The Work of Michel Foucault
7. Beyond the Power Perspective: A Critique of Foucault on Punishment
8. The Rationalization of Punishment: Weberian Themes and Modern Penality
9. Punishment and Culture: Cultural Forms and Penal Practices
10. Punishment and Sensibilities: A Genealogy of 'Civilized' Sanctions
11. Punishment as a Cultural Agent: Penality's Role in the Creation of Culture
12. Punishment as Social Institution