THE SOCIOLOGY OF PUNISHMENT
It isn’t too long ago that sociologists of punishment tended to neglect culture in their efforts to identify the social determinants and functions of penal institutions. In the 1970s and 80s, the Marx-and-Foucault-inspired focus of the field was on class control and disciplinary domination rather than on cultural meanings or sensibilities.
In those days, if ‘culture’ showed up at all, it was usually in the guise of power-knowledge discourses embedded in the apparatus of penal power, or else as systems of ideology that mystified economic exploitation and reproduced the dominance of the ruling classes. And the point of studying these narrowly conceived cultural forms – for that is what they are – was not to trace their various meanings and cultural connotations but more narrowly to trace their instrumental effects in organizing or legitimating penal control.
The idea that penal institutions were grounded in cultural values and perceptions; that they drew upon specific sensibilities and expressed particular emotions; that they were sites of ritual practice and cultural production; and that they produced diffuse cultural effects as well as crime control – these were not prominent considerations at that time. Despite the legacy of Emile Durkheim (1983 and 1984), and the subsequent
analyses of writers such as Mead (1918), Sorokin (1937), and Sutherland (1939), the cultural and expressive characteristics of penal practice were moved out of the limelight to make way for a more single-minded focus on the political and instrumental aspects of the phenomenon.1 The interpretive search for meaning and the excavation of cultural significance were displaced by more functionalist accounts of penal control.
That time now seems long gone. Today, culturalist analysis is a prominent feature of writing in this field. Writers pay close attention to the role of culture in the shaping of punishment, and to the cultural consequences of penal practices. Not the least reason for this shift was the realization that culture encodes and is encoded by economic and political forces, and that the analysis of culture is not a distraction from the study of penal power’s controlling effects but is, on the contrary, a vital component of such a study.
Lest I seem too quick to point out the faults of others, I should note that the trajectory of my own work is no exception to the general pattern I am describing here –indeed its development illustrates quite well the cultural shift that the field has undergone over the last few decades. Thus the theoretical and historical analyses of the early 1980s (Garland and Young 1983; Garland 1985) do not explicitly discuss ‘culture’ at all, despite the fact that a close reading of specific ideologies and forms of knowledge – together with their institutional effects – was a central feature of these studies.
Punishment and Modern Society, published in 1990, argued for the importance of a specifically cultural dimension in social theories of punishment and directed attention to penality’s cultural consequences as well as its causes. Most recently, The Culture of Control (Garland 2001), develops history of the present in which cultural phenomena stand centre stage in an argument claiming that recent changes in the social organization of everyday life have 1 The tradition of ethnographic work in prisons that studied the cultural worlds that inmates created for themselves tended to dry up in this period. Jacobs book Stateville (1977) was to be the last major work in this tradition for some 20 years, and already it was moving away from the study of culture to scrutinize the relation of prison to the regulatory controls of mass society has given rise to a new collective experience of crime and a new ‘culture of control’ that is expressed and embodied in the conduct of governmental and non-governmental actors.
Perhaps, like Monsieur Jourdain, we had been speaking about culture all along. But it seems to me that the explicit acknowledgement of this cultural dimension – when it was eventually identified and discussed – changed the research agenda of the sociology of punishment in significant respects. A new self-consciousness about cultural issues directed attention to aspects of the phenomenon that had previously been ignored. New sources of theoretical inspiration emerged – above all Elias, Geertz, and Bourdieu. New methods of inquiry were developed and new kinds of explanation began to appear. The result is a field that looks rather different from the one that existed twenty years ago. This pursuit of cultural themes and the use of culture concepts has taken many forms and produced many fine analyses. Some sense of their range and variety might be had by reading Dario Melossi (2001) on the cultural embeddedness of social control and the complex relation between religious ethos and punitive practice2; Martin Wiener
(1990) on the cultural frameworks that shaped crime policy in Victorian and Edwardian England; Martha Grace Duncan (1996) on the unconscious images and literary figures that shape the cultural meanings of imprisonment; King and Savelsberg (2003) on the importance of collective memory and cultural trauma in the penal policy of Germany and the USA; Pieter Spierenberg (1984) or John Pratt (2002) on the impact of changing manners and sensibilities in the “civilizing” of punishment; Philip Smith (2003) on cultural myths and symbolic meanings surrounding penal technologies; or Vic Gatrell (1994) on the changing emotional responses to public hangings in 18th century England. 2 For a different analysis of the influence of religion on punishment, see Savelsberg (2004).
The new prominence of the concept of culture in contemporary studies of punishment makes it opportune to explore the ways in which ‘culture’ is now being understood in the sociology of punishment literature and to point to some of the conceptual and analytical problems that may be involved. In developing its understandings of ‘culture’, the sociology of punishment has drawn upon prior work in sociology and anthropology, taking over concepts and lines of inquiry that were first developed elsewhere. Conceptions of culture in the sociology of punishment will therefore tend to reproduce the assumptions, arguments and conceptual patterns that we typically see in sociology and anthropology – and, in doing so, will introduce many of the tensions and ambiguities that have become apparent in these fields.
A discussion of these conceptual patterns and the various problems with which they are associated may therefore be useful.
Two conceptions of ‘culture’
When the idea of ‘culture’ is invoked in sociological or historical analysis it is typically used in one of two rather different senses. In the first sense, the analysis asserts the importance of distinctly cultural factors as a causal force in shaping penal institutions (culture as opposed to not culture) while in the second, the analysis points to different cultures (this culture as opposed to that culture) and seeks to show that contrasting cultures produce different patterns of penalty.
In the first usage, the intention is to isolate specifically ‘cultural’ forces (or symbols, or meanings, or practices – the ontological stuff of which culture is composed is understood in a variety of ways); to distinguish them from other kinds of entity (such as 4 social, political, economic, or criminological factors); and to show that these cultural isolates have a distinct determinative force of their own.3 An example of this approach is to be found in Gatrell’s book, The Hanging Tree (1994) which describes how the refined sensibilities cultivated by 19th century elites eventually led many of them to express revulsion at the sight of judicial hangings. (Whether they actually felt revulsion, or felt they ought to feel it, and expressed themselves accordingly, is one of the issues Gatrell leaves hanging.) Whether as genuine motivation or as a rhetorical form that glossed other, more material interests, these expressions of refinement and affront played a prominent part in the campaign that led to the abolition of public hanging in 1867. Gatrell argues that this new sensibility (he regards it as ‘squeamishness’ rather than true humanitarianism – it was, after all, public hangings, rather than hangings as such, that were being abolished) exerted its own causative force in bringing about the abolition of the public spectacle. “[C]ulture generated its own momentums as well as its own resistances” (Gatrell 1994: 25). He is quick to add, however, that this causal force was at its strongest when it ran in the same direction as interests of a more material kind. “Only rash historians would privilege material or political or cultural causes without interrelating all three”.
In the second kind of usage, the analytical distinction being made is not between different aspects of the social whole or different types of social relations, but instead between different social wholes, each of which is understood as a distinctive ‘culture’.
Understood in this way, a culture is a more-or-less bounded, more-or-less unified, set of customs, habits, values and beliefs. It is a distinctive universe of meaning, a distinctive 3 One sees a similar conceptual move in some Marxist analyses, where ideological practices form a distinct ‘level’ of the social formation, and is accorded a degree of relative autonomy in respect of the fundamental 5 form of life, or a distinctive ‘world’ in the sense that Nelson Goodman (1978) to the term.
Such cultures are usually associated with particular communities, such as an ethnic group, a social class or a nation – so that we might talk of Jewish culture, working-class culture, or American culture – and the forms of life that these particular groups embody and enact. Here the term ‘culture’ operates as a totalizing term, standing for all of the distinctive traditions, folkways, institutions and values associated with a specific social group and a particular historical moment. If there is a contrastive opposite that helps define ‘culture’ here it is the idea of ‘biology’ – culture being the distinctive social world that human beings have created for themselves, and the social forms that shape group life and individual identity. When the early social anthropologists set out to study ‘cultures’, they saw their task as a comprehensive one, recording the whole way of life that a specific tribe or people had created.
Deployed in this way, the idea of culture may be used to explain differences (or similarities) in the penal practices of different societies by showing that the practices in question are the product of a specific cultural traditions or frameworks of values. As Melossi (2001:407) puts it, “Punishment is deeply embedded in the national/cultural specificity of the environment which produces it.”
Thus the Dutch ‘culture of tolerance’ may be contrasted to the more punitive penal culture of England and Wales (Downes 1988) or the national culture of Italy may be opposed to that of the USA (Melossi 2001) as an explanation for continuing differences at the level of national penal practices. The specificity of particular cultures, together with their tendency to shape the sense of action and events, also has consequences for ‘penal transplants’. Penal institutions, legal terms, or criminological conceptions are transferred from one culture to another, will tend to causal force of the ‘economic’ level change their character and connotations as they become “embedded” in the new cultural setting (Melossi 2001:404).
Both of these usages have their uses, so to speak, and authors succeed in using them to good effect. But each one raises certain problems that ought to be borne in mind whenever they are deployed. With regard to the first usage – culture as opposed to not culture – there is an operational (and ultimately a conceptual) difficulty in isolating the distinctively ‘cultural’ components of social relations from the other, presumably ‘noncultural’, aspects with which they are typically bundled.
One might suppose, for example, that it would be easy to abstract the cultural aspects of a penal practice from its control aspects but in practice it is often difficult to draw such a distinction. Penal control can be achieved though the manipulation of meaning. Specific forms of control – the restriction of liberty, the infliction of pain, or the deprivation of resources – depend for their control effect upon the meaning and value that groups and individuals attribute to these measures. The same penalty will be regarded and experienced differently – and will exert greater or lesser control – depending on the cultural context in which it is deployed and the ways in which its meaning is ‘read’ or interpreted by its various audiences.
Similarly, one might suppose that the cultural aspects of a penal institution can be distinguished from its economic aspects – when one is talking of the institution’s resources, its sources of support, the interests it serves, or the effects that it produces. But even ‘purely economic’ phenomena are always also cultural phenomena insofar as they depend on cultural understandings of what is to count as valuable or useful, as well as cultural understandings of what are effective and acceptable means to pursue these values. The pursuit of profits, the accumulation of wealth, the marshalling of resources, the interaction of supply and demand – these are the defining features of economic activity and economic interests. But each of these entails cultural commitments of a definite kind: as Max Weber (1904-5) argued a century ago, economic action may be
instrumental and technical, but it always embodies cultural, spiritual and moral values.
Weber’s argument refers to the ends of economic action but it is no less true of the means by which these ends are legitimately pursued: cultural forms are embodied in legal rules and manufacturing technologies, in purchase and sale, and in the specific modes of accounting and allocation that we use to organize these activities. When we say that a penal institution serves economic interests, or reproduces economic arrangements, we are not bracketing off culture and talking about something else – we are invoking a familiar and convenient aspect of culture: the economic domain with its distinctive forms and characteristics.
Rigidly distinguishing the ‘cultural’ from the ‘economic’ aspects of punishment involves something of a category mistake, in much the same way that distinguishing ‘culture’ and ‘power’ does. Cultural categories, habits and sensibilities are embedded in, and constitutive of, our political and economic institutions. The study of culture does not begin where the study of power and economics leaves off – it is a constituent part of any political or economic analysis.
In studying social relations, we can, and do, make rough demarcations between the domains of the economic, the political, the legal, the scientific, and the cultural – and these distinctions serve a useful purpose, up to a point. But unless we want to confine ‘culture’ to the world of leisure, art and entertainment (and, in so doing, artificially restrict the study of meaning and sensibility as it relates to social action) it turns out that the generic category of ‘culture’ envelopes all of the other, more specific social categories. If the distinctive stuff of culture is meaning, perception, feeling, sentiment, value, belief and the various forms of their expression, then, in the social world, it is not particularly distinctive stuff.
Culture is suffused through all social relations, institutions and practices, and abstracting it away from these forms necessarily does violence to the true relationship between meaning and action.
This point has methodological consequences. It is often assumed that the quintessential cultural materials are texts, images, signs and symbols, and that a cultural analysis of an institution is an analysis of these aspects of its operation. On the basis of this understanding, cultural analyses of penal phenomenon typically focus their attention upon punishment’s discursive texts (government reports, judicial opinions, sentencing laws, hanging day broadsheets, literary and theatrical depictions, etc.) or else its ceremonial scenes and symbols (the scaffold ritual, the courtroom drama, the prison design). As a matter of practical convenience, this makes good sense – the best clues to the perceptions or beliefs or feelings that support a practice are often found in the elaborated discourses associated with it. But methodological convenience should not produce a restrictive definition of the phenomenon under study. Culture can be most easily ‘read’ in texts and images but it is also embedded in non-discursive entities – such
as technologies, spatial arrangements, bodily postures, habitual patterns of conduct, and specific performances.
Where social action and institutions are concerned, the study of culture cannot easily be confined. The attempted separation of meaning from action, symbol from substance, form from function, cultural from non-cultural, is only ever a pragmatic effort to simplify real-world complexity: such distinctions can rarely withstand close analytical scrutiny. The point to draw from this is not that a focus on culture in the sociology of punishment is misplaced or mistaken. The point is that such a focus need not and should not be separated from the hard-edged, ‘material’, aspects of penal practice, such as penal technologies, penal economics, penal politics, and penal violence. Paying attention to culture, using the tools of cultural analysis, focusing on meaning and sensibility, thinking about audience and interpretation – these should enhance our study of penal power and control, not inhibit or displace it.
The creation and communication of meaning in penal practice is an ongoing and inevitable aspect of the activity. Scholars of culture are typically drawn to the ritualized aspects of punishment (the hanging day ceremony, the formal pronouncement of sentence, the jailhouse reception process) since these practices are explicitly concerned to Scholars are also drawn to moments of penal change and penal drama – instances of penal excess (Garland forthcoming 1), or enactments of penal reform (Wiener 1990) – where the messages communicated by punishment appear to take on new meanings or to become more emphatic precisely because they break with established patterns and conventional expectations. It is equally important, however, to analyze penal routines and standardized arrangements, since these also communicate and signify and embody meaning and value and sensibility, even if their audience is a more restricted one and their communications are less vivid. Indeed, the cultural meanings of routine practices are often more revealing for being ‘offstage’ and understated. The modern American execution protocol, with its behind the scenes staging, blank imagery, bureaucratic process, and low-key public announcements, embodies a symbolism and sensibility of a very definite kind, however much its stagers seek to down-play its ritual character (Johnson 1998).
If the first usage of the culture concept is problematic because ‘culture’ cannot easily be separated from other aspects of social relations, the second usage is troublesome for a rather different reason. The notion of a cohesive culture that is unified and bounded, totalizing in its comprehensiveness, and distinctive of a particular people or a particular place is problematic today not because it is conceptually incoherent, but because it is increasingly at odds with the reality of modern social life.
As a consequence of communicative interaction, ethnic intermarriage, and commercial interdependence, there are very few social groups whose ‘culture’ is altogether distinctive and unmixed with that of others. This is true even of the relatively isolated and underdeveloped peoples that formed the traditional focus of anthropological study – cultural anthropologists have long since given up on the quest for the untouched indigenous culture. Something approaching pure indigenous cultures may have once existed, but international exchange and local diversification have put an end to that.
This is all the more true of modern western societies, which are the product of centuries of commercial and communicative interaction. Cultures overlap and intermingle, just as social and ethnic groups do. Modern commerce and communication give rise to a constant exchange of ideas and technologies, the commingling of customs, and the convergence of tastes and habits – despite the effort of social groups to maintain distinctions and conserve distinctive traditions. Modernizing social forces such as capitalist markets, mass production, consumerism, democratization, and technology may not have produced “Americanization” (or “McDonaldization”) on a global scale, as some sociologists have claimed, but they have contributed to the emergence of ways of life (automobiles, suburbs, shopping malls, “flexible working”) and forms of politics (neoliberalism, deregulation, “welfare reform”) that have become established to some degree in most advanced societies.
The result is that contrasts between national cultures (or between local cultures within a nation) are now mostly a matter of degree and emphasis rather than mutually exclusive difference. Particular cultural traits – values, perceptions, sensibilities, traditions, representational forms – exist in different mixes in different places, and thus give each group and each place some degree of specificity and distinctiveness. Cultural differences can thus be legitimately invoked as factors in the explanation of penal variation, but these differences must be carefully explicated and substantiated.
Comparative scholarship cannot rely upon totalizing national contrasts as an unproblematic explanatory resource. Thus when Whitman (2003) invokes American culture in contradistinction to European culture, pointing to long-standing contrasts in attitudes towards matters of status and individual dignity as an explanation for contemporary contrasts in the intensity of punishment, he runs up against the problem of internal variation and historical change.4 Similarly, when Melossi (2001:407) talks of “cultural traditions of punishment” the phrasing is helpful only if one bears in mind that national traditions are various and internally contested, that the historical trajectories of national penal systems exhibit major changes and discontinuities.
There is no single ‘American’ culture for these purposes any more than there is separate and singular ‘European’ one with which it can contrasted. For most explanatory purposes, the analyst is obliged to deal with cultural differences at a level of specificity that is more fine-
The discussion of ‘the American condition’ in Sarat (2001) also tends to essentialize a complex, diverse culture that resists easy summary. See Garland (2002) for a critical discussion. grained than that of the national culture. Which is, in fact, what most sensitive scholars proceed to do: Melossi (2001), for instance, conceives of national cultural traditions not as fixed frameworks of a singular character but as more flexible “vocabularies of motive” that provide a distinctive repertoire of values and meanings within which penal policies are forged. These “cultural toolboxes” – embedded in social institutions and connected to the interests of political elites – are distinctive in the same way that national languages are distinctive: they may encode the same reality, and enable the same forms of action, but they impart a distinctive inflection and idiom, invoke a different ethos, entail different emphases and connotations.
If the problem of internal complexity and historical change takes the edge off sharp cultural contrasts, the growing importance of policy transfer and penal transplants dulls them even further. The international exchange of penological ideas and technologies has been a fact of life since the late 19th century, a fact that has led to a growing convergence of professional cultures and the rapid transfer of policy prescriptions and institutional ideologies.
The aims and objects of cultural analysis
Cultural analysis is not a singular kind of thing. Culture is studied in different ways and for different purposes. One major source of this variation is the nature of the questions that motivate the research. A scholar may study “culture” as an independent variable in an attempt to explain a dependent variable, such as a rate of imprisonment.
Attempts to explain penal variation across places or penal change across time may turn to “culture” as a possible cause. In this kind of study, “culture” is being distinguished from other candidates for causal efficacy, such as “economic factors” or “crime rates”. As Douglas (1992: 167) notes, rather wearily, “In social theory the word ‘culture’ becomes an extra resource to be wheeled in after other explanations are defeated.” Such analyses are typically rather reductive in their conceptions of culture, and usually rely on rather thin descriptions of what that culture is.
A study that sets out to inquire about the meanings of a penal practice, or about the ways a penal ritual engages in symbolic communication with its various audiences will put more emphasis on the explication of meaning and the analysis of the symbolic conventions and interpretive practices involved. Similarly, inquiries that seek to understand the non-instrumental aspects of penal practice, or the ways in which expressive punishments convey emotional energy, or the specific sensibilities that tolerate some forms of penal violence but are repelled or embarrassed by others, will tend to focus upon affective rather then cognitive aspects of culture, narrowing in on the structures of feeling that shape penal practice and the range of emotions that certain punishments typically evoke.
When writers in the sociology of punishment choose to study culture they often have different understandings of what it is that they are studying and how they should organize their study. Some scholars study culture as it is expressed in images and pictorial representations, examining artistic artifacts in order to reveal the cultural understandings and sensibilities that shaped the experience of punishment in specific places and periods (Edgerton 1984, Merback 1999). Others train their attention on the ideas and conceptions that shape understandings of punishment – focusing on what one might term the formalized aspects of penal culture, as manifested in programmatic documents, scientific reports, and official classification systems (See Foucault (1977); Cohen (1985); Garland (1985)). The study of ideas and conceptions has also been pursued in a broader manner, to include fictional as well as factual forms, as in Wiener’s study of “the intellective dimensions [that] have given meaning to the social activity of dealing with crime” (Wiener 1990:3) Some writers study the representation of punishment in literature, examining the tropes and metaphors that depict the penal experience and integrate it into the cultural imagination. In this mode, Duncan (1996) explores literary images, cultural archetypes, and unconscious fantasies of the prison and the outlaw, arguing that our cultural relationship to crime and punishment is more complex and ambivalent than is usually assumed and that an “unconscious mythological universe” influences the acts of offenders and those who punish them. Bender (1987) develops the literary analysis of penal forms into an historical argument about cultural causation when he argues that the 18th century realist novel “enabled” the emergence of reformed penitentiaries because they created in their readers a certain “texture of attitudes” and a “structure of feeling” that have an elective affinity with the “penitentiary idea”.
Other writers investigate the characteristic emotional responses elicited by punishment by studying the evidence of broadsheets, eye-witness accounts and reformers’ discourse, focusing especially upon the ways in which these have changed
over time, or varied between social classes. Writers such as Spierenburg (1984) and Gatrell (1994) have sought to uncover changing structures of feeling and sensibility Bender argues that each of these “social texts” – the realist novel and the reformed penitentiary – is “structured by a kind of narrative form that treats the material world, character, consciousness, personality, authority and causation itself in a distinctive [realist] manner.” The prior existence of the realist novel made possible the subsequent popularity of the penitentiary idea. insofar as these can be inferred from historical evidence. In a rather different vein, contemporary students of public opinion analyze opinion poll data in order to trace shifting public attitudes and understandings of penal phenomena (Beckett 1997; Gross and Ellsworth 2003).
An alternative approach is to address culture not in its intellectual or aesthetic dimensions but instead in its behavioural aspects. Culture, in this perspective, becomes a matter of habits and routines, of everyday patterns of activity and interaction, of takenfor- granted orientations and recipes for action. This aspect of culture refers to the embedded and embodied habits of social actors who have been ‘acculturated’ to the norms of life in specific settings. It refers to the common sense understandings that these actors have acquired, and to the perceptions, judgements and evaluations that they habitually make as a consequence of this acculturation. Culture, in this sense, is a matter of ‘habitus’, a concept that focuses on the point of convergence between the behavioural orientations of individual actors and the norms, constraints and power relations of the social field in which they act (Bourdieu 1990). It is this dimension of culture that is examined in Garland (2001) when it refers to the new routines of everyday life and the new dispositions of penal actors that have recently emerged in certain late modern societies. Similarly, Carlen’s classic study of women’s imprisonment (Carlen 1983) reveals the cultural assumptions that are embedded in sentencing decisions, in the organization of prison space, and in patterns of inmate-guard interaction, and demonstrates how these practices embody, enact and reproduce specific understandings of gender.
The scope and purpose of cultural study also vary. Sometimes the aim is to study culture ‘in its own terms’ – explicating signs and symbols, identifying recurring tropes and cultural connotations, and tracing the ways in which a penal institution is conventionally interpreted and understood (Duncan 1999). Such studies are typically synchronic, examining penal culture at one point in time, linking cultural understandings of punishment to the broader cultural universe of which they form a part. Other scholars have taken a more historical approach, showing the ways in which punishment has been encoded by different cultural frameworks at different historical periods. These cultural frameworks may be examined as distinct cultural frameworks, separated in time (Wiener 1990), or the scholar may trace the processes of historical transformation that led from one to the other (McGowen 1987). Sometimes the aim of the study is more fully sociological, aiming not just to identify patterns of penal culture but also to locate these patterns within the larger social formation of which they form a part. Thus developments in penal culture (such as the emergence of reform ideas, the refinement of sensibilities, movements in philosophy, changes in penal symbolism, shifts in public opinion, etc.) are linked to changes in other social relations and shown to be interacting elements in a complex social structure (Durkheim 1902/1983; Spierenburg 1984; Bender 1987; Garland 2001)
The cultural phenomena discussed in these studies may be transient social currents such as public opinion (Beckett 1997; Ellsworth and Gross 2003), semiinstitutionalized cultural formations of a relatively short-term nature, such as ‘the crime complex’ of the 1980s and 1990s (Garland 2001); institutionalized modes of thought and action, such as ‘liberalism’ or ‘penal-welfarism’ (Garland 1985); or else embedded cultural values that have a long-standing character, grounded in confessional practices, national institutions or regional traditions (King and Savelsberg 2003; Whitman 2003; Zimring 2003).
Distinguishing between these rather different kinds of phenomena – between constitutive cultural bedrock and transient cultural currents – is important here, not least because their rather different temporalities and durations are often indicative of their role in social organization. And in the historical study of cultural symbols or practices, one needs to attend to shifts in the connotations or behavioural consequences of the phenomenon in question. Cultural elements are often transformed over time, so that the same symbols come to be interpreted differently and get associated with new interests, or old values come to lose their grip over individual attitude and social action.
The longevity and depth of these phenomena are only two of the dimensions on which they vary. Penal ethnographies (e.g. Girling, Loader and Sparks 2000) have shown that cultural forms that are often assumed to be more or less universal and undifferentiated – such as the contemporary control culture, the fear of crime, public attitudes towards delinquent youth – are, in fact, quite variegated in their local meanings and specific uses, depending for their sense on subjective orientations and the effects of time, place and circumstance. Thus Girling et al (2000) suggest that generic penal cultures and abstract symbols are the stuff of mass media discourse and academic generalization: in actual use, these cultural attitudes and perceptions become much more inflected and differentiated in their meaning.
Most importantly, we need to bear in mind that there is no such thing as ‘the’ cultural meaning of a symbol, or practice, or institution – cultural meanings always exists in the plural, particularly where the symbol or practice in question has a high degree of social importance or visibility. The social meaning of any significant symbol, practice or institution will typically be layered and contested, subject to heteroglossic variation rather than tightly contained singularity of reference (Smith 2003). The immediate connotations of a particular practice may be widely shared and obvious to everyone, but this broad significance is not the same as the meanings it has for those most closely affected, or for experts, or for those who sense in the practice the echoes of previous practices and politics. Different audiences will read the phenomenon differently, often in competing ways. To many conservatives, today’s American death penalty is an example of superdue process, wasteful expenditure and unnecessary delay, a system that too often hesitates to deliver the legal punishment that murderers richly deserve (Kosinski and Gallacher 1995). To many liberals and African Americans, the same system communicates a very different message – conveying unacceptable echoes of racial violence and lynching (Jackson, Jackson and Shapiro 2001). The meanings that officials use to characterize a practice (the prison as correctional; the death penalty as a deterrent) may be hotly resisted by those oppose the practice, and by those upon whom it is imposed.
Some penal institutions become the stuff of myths and legend – the guillotine is an example (Arasse 1989; Gerould 1992; Smith 2003) – or of standard depictions in popular culture and entertainment – think of images of the prison in film and literature (Duncan 1996). Others are known only to the cognoscenti and mean little to the general public. Even with respect to ‘high profile’ penal practices – the death penalty, supermax prisons, victim impact statements – the public is often surprisingly ill-informed. At any given time, a majority of the population may have only a superficial engagement with penal institutions, deriving their interpretations of their meaning from news stories or folk prejudices. An issue may have profundity and symbolic depth for some, while striking the majority of people as a matter of little practical importance.
Integrating the study of culture and the study of social action In concluding this brief essay I want to enter a note of caution about the use of cultural analysis as a framework for understanding punishment and penal change. In particular I want to argue that we should isolate the ‘cultural’ elements of punishment only as a preliminary to more integrated analyses that fold cultural elements into multidimensional accounts of the causes and consequences of penal practices.
Since my work is often seen as being sympathetic to a ‘culturalist’ approach, I ought perhaps to explain why I think it necessary to draw back from theoretical tendencies that are beginning to emerge in this field.6 A concern of my past work – developed in the wake of Foucault and the power-and-control analyses he inspired – has certainly been to bring culture back in (see Garland 1990, 1990a and 1991). But my intention has always been to study culture in the context of a multi-dimensional social theory and to use the explication of punishment’s cultural meanings to assist in the development of explanatory accounts of punishment and penal change. In this approach, the interpretation of cultural meaning is viewed not as an alternative to the development of sociological or historical explanation but as a necessary component of it. This,
6 For a detailed, critical discussion of some recent literature that offer ‘culturalist’ interpretations of penal institutions, notably Zimring (2003) and Whitman (2003), see Garland (forthcoming 2). essentially Weberian, approach has definite ramifications for our conceptualization of culture and its role in the development of explanatory accounts.
In a multi-dimensional social analysis (see Garland 1990) ‘culture’ is no more a self-standing and self-contained area of social life than is ‘power’ or ‘law’ or ‘economics’.7 To talk of ‘culture’ is to talk of those aspects of social action or social artifacts that are ideational, affective or aesthetic – categories and classifications, styles of thought and ways of seeing, structures of feeling and psychological dispositions, values and sensibilities – and which can be studied by attending to the signs, symbols, and performances through which these somewhat nebulous phenomena are publicly represented (Geertz 1983). But the cultural aspects of action are only ever that – aspects.
They are one dimension among others – one of the several elements that typically converge to motivate and instantiate social practices. In this conception, every individual action, every collective practice, every social institution, has its cultural elements. Sometimes these cultural elements are foregrounded, as they are in art, or leisure, or fashion, or entertainment – the discourse and display involved in penal rituals often foregrounds symbolic meaning in this way. Sometimes they are further back in the mix – as in the cultural ideas and values that are embedded in specific classification practices, legal procedures or penal technologies. But cultural elements are always present, and are always admixed with other aspects of action that are more commonly understood as economic or political. As Mary Douglas notes somewhere, the symbols and aesthetics and attitudes of culture are not separable from the 7 For critical discussions of the use of the term in anthropology, sociology and history, in Sewell (1999); Swidler (2001); Kuper (1999); Brightman (1995); Ortner (1984) and Abu-Lughod (1991). hard-headed world of material interest: they are the vehicles through which these interests are pursued.
An example may help clarify this point. The phenomenon of racism in contemporary western societies is often understood as a cultural one – a matter of cultural stereotypes, prejudices and hostilities. But racism flourishes and is reproduced in institutional practices and social divisions where it meshes with the economic and political interests of particular social groups to the detriment of others. In its real social life it becomes an aspect of power structures, economic stratifications, social and spatial segregation, and sometimes of legal doctrine (Frederickson 2002). To study racism as culture without also seeing it as a set of social interests would be as partial and misleading as it would be to study racism as a matter of social division without reference to the cultural meanings and legitimations that keep these divisions in place.
The cultural analyses that I have been seeking to develop are not self-standing. The analysis I develop in The Culture of Control (Garland 2001), for example, aims to show that the ways of thinking and feeling that have grown up around crime and insecurity – what I call the ‘crime complex’ or the ‘culture of high crime society’ – are cultural adaptations to predicaments that are, in turn, conditioned by the field of social forces in which the relevant actors are operating. Economic interests, political projects, intra-group dynamics, dominant ideologies, professional claims, experienced insecurities, psycho-dynamic processes – all of these are implicated in the emergence of that cultural formation. And it is these motivations and interests, with their different structural sources and political resources, and their various forms of cultural representation and resonance – Weiner (1990:2) makes them same point when he quotes Keith Michael Baker’s aphorism: “all social activity has an intellective dimension that gives it meaning, just as all intellectual activity has a social not just ‘culture’ – that converge to produce the popular and political discourses, habitual practices, legislative enactments, judicial decision-making, penal practices and social institutions associated with the culture of control.
The term ‘culture’ marks an analytical abstraction, artificially separated from the other motivations and constraints that shape social action. The point of abstracting in this way – its heuristic function – is to isolate the languages and symbols through which attitudes are cultivated, aims formulated, and practices legitimated and to attend to the structures of meaning that they sustain. These symbols – the meanings of which are structured by their relation to other symbols, which are linked, in their turn, to other practices and ways of life – have a logic and a rhetorical force of their own which may be explicated, thus revealing a specific dynamic through which motivations are formed and actions are prompted. The interpretive analysis of culture’s texts and symbols is an important step towards social explanation, as Weber, Geertz, and Bourdieu have shown.
But in order for it to contribute to that end the analyst must show more than just a correlation, or even an elective affinity, between culture and conduct – he or she must show how the meanings in question come to relate to action. In order to move from the analysis of culture to an explanation of action we have to show how culture relates to conduct, how specific symbols, values or ideas come to be a motivational force or operational basis for action. Between culture understood as a symbol system and action understood as an embodiment of culture in the shape of conduct and practices, there are specific processes of enactment (Geertz) and embodiment (Bourdieu) that need to be understood. dimension that gives it point.”
If the analysis of culture is to inform the explanation of conduct we need an account of the processes and mechanisms that translate (or enact, perform, inflect, express, and rework) culture into action (Archer, 1996; Swidler 2001). If a “cultural tradition” is to be accorded causal efficacy in explaining present-day penal action, we need an account of the mechanisms that transmit this cultural attitude through time, and reproduce it in the present. Thus Zimring’s claim that “culture of vigilantism” explains the empirical correlation that he discovers between the distribution of lynching events in the 1890s and the distribution of executions in the 1990s remains speculative at best because he is unable to identify the mechanisms by means of which that ‘tradition” has been transmitted over time and it translated into the decision-making of legal actors in the present (Zimring 2003; For a critique, see Garland forthcoming 2). As King and Savelsberg (2003) show in their comparative study of cultural trauma and punishment, what matters is not the historical event or past experience but the way in which its institutionalization (in law, in law enforcement, in socialization practices, in rituals of commemoration, etc.) creates and sustains a collective memory that continues shape action in the present.
In any concrete social analysis, we should see ‘cultural’ elements operating together with interests and instrumentalities that obey a (psychological, or economic, or political, or legal, or criminological) logic of a somewhat different kind. A multidimensional analysis strives to depict a process in which all of these things are operating at once, in the complex motivations and overdetermined forms of action that make up any institutional practice. Cultural forms – languages, symbols, texts, architectures, the ideational and aesthetic and emotional aspects of social life – can be isolated for the purposes of study, and the “thick description” of these forms and their meanings is an important task for research. But while the task of explicating meaning, tracing symbolic reference, or mapping out mythologies is an important and necessary one, for sociologists it is never sufficient.9 For the discipline, if not necessarily for the individual researcher, explication ought to be a preliminary to the social explanation of the phenomenon in question. Cultural forms never exist outside their social context of use and the practices of interpretation that are brought to bear upon them. And it is to these uses, contexts, practices, and complexity that social explanation ought finally to return.
“What is needed is a two stage approach to analysis and writing. We first need a thick description of what the punishment, law or policy at hand actually means, preferably buttressed by a theory that guarantees cultural autonomy such as structuralism. We can then go on to see how this intersects with institutional and political realities. If we jump straight into institutional analysis we are never really putting meaning centre stage. Isn’t this what the study of “culture and punishment” should be about?” Smith (2003a:3)
The concept of punishment — its definition — and its practical application and justification during the past half-century have shown a marked drift away from efforts to reform and rehabilitate offenders in favor of retribution and incarceration. Punishment in its very conception is now acknowledged to be an inherently retributive practice, whatever may be the further role of retribution as a (or the) justification or goal of punishment. A liberal justification of punishment would proceed by showing that society needs the threat and the practice of punishment, because the goal of social order cannot be achieved otherwise and because it is unfair to expect victims of criminal aggression to bear the cost of their victimization. Constraints on the use of threatened punishments (such as due process of law) are of course necessary, given the ways in which authority and power can be abused. Such a justification involves both deontological as well as consequentialist considerations.
Philosophical reflection on punishment has helped cause, and is itself partially an effect of, developments in the understanding of punishment that have taken place outside the academy in the real world of political life. A generation ago sociologists, criminologists, and penologists became disenchanted with the rehabilitative effects (as measured by reductions in offender recidivism) of programs conducted in prisons aimed at this end (Martinson 1974). This disenchantment led to skepticism about the feasibility of the very aim of rehabilitation within the framework of existing penal philosophy. To these were added skepticism over the deterrent effects of punishment (whether special, aimed at the offender, or general, aimed at the public) and as an effective goal to pursue in punishment. That left, apparently, only two possible rational aims to pursue in the practice of punishment under law: Social defense through incarceration, and retributivism. Public policy advocates insisted that the best thing to do with convicted offenders was to imprison them, in the belief that the most economical way to reduce crime was to incapacitate known recidivists via incarceration, or even death (Wilson 1975). Whatever else may be true, this aim at least has been achieved on a breathtaking scale, as the enormous growth in the number of state and federal prisoners in the United States (some 2.1 million in year 2005, including over 3,700 on “death row”) attests.
At the same time that enthusiasm for incarceration and incapacitation was growing as the preferred methods of punishment, dissatisfaction with the indeterminate prison sentence — crucial to any rehabilitative scheme because of the discretion it grants to penal officials — on grounds of fairness led policy analysts to search for another approach. Fairness in sentencing seemed most likely to be achievable if a criminal sentence was of a determinate rather than indeterminate duration (Allen 1981). But even determinate sentencing would not be fair unless the sentences so authorized were the punishments that convicted offenders deserved. Thus was born the doctrine of “just deserts” in sentencing, which effectively combined the two ideas. By this route the goals of incapacitation and retribution came to dominate, and in some quarters completely supersede, the goals of rehabilitation and deterrence in the minds of politicians and social theorists.
Concurrently with these broadly socio-legal developments (to which might be added the despair of practitioners that reached its peak with the police assault on rioting prisoners in New York’s Attica prison in 1972) philosophers were crafting their own arguments, reviving classic views associated with the names of Kant and Hegel to establish two principal ideas that fit surprisingly well with those reviewed above. First, philosophers urged that reformation of convicted offenders (especially in its more medically inspired modes, vividly depicted in fictionalized form in Anthony Burgess’s Clockwork Orange), is not the aim, or even a subsidiary aim among several, of the practice of punishment.
Aside from being an impractical goal, it is morally defective for two reasons: It fails to respect the convicted offenders’ autonomy, and it flouts the offenders’ right to be punished for the wrongdoing he intentionally caused (Morris 1968). (The oddity of a theory that affirms having and exercising a right to be punished has not escaped notice.) Second, justice or fairness in punishment is the essential task of sentencing, and a just sentence takes its character from the culpability of the offender and the harm the crime caused the victim and society (Card 1973, von Hirsch 1985, Nozick 1981: 366-74). In short, just punishment is retributive punishment. Philosophers reached these conclusions because they argued that there were irreducible retributive aspects to punishment — in the very definition of the practice, in the norms governing justice in punishment, and in the purpose of the practice as well.
As a result, the ground was cut out from under the dominant penal policy of mid-century, the indeterminate sentence in the service of the rehabilitative ideal for offenders behind bars. Probation as the essential nonincarcerative alternative sanction received an expanded role, but release on parole came to a virtual end. In its place (but as it turned out, only in theory) was uniform determinate sentencing, which would avoid the follies of unachievable rehabilitative goals and ensure both incapacitation and even-handed justice for all offenders. (This was, of course, before the political process distorted these aims. Not all admirers of justice in punishment supported determinate sentencing.) The culmination of this trend appears in the Sentencing Reform Act of 1984, which spawned the United States Sentencing Commission and its Federal Sentencing Guidelines. The doctrine has not been without its critics, both in theory and in practice (Zimring 1977). But as the new century begins, no alternative approach shows any signs of supplementing the just deserts sentencing philosophy — no matter how preposterous in practice the claim that a given punitive sentence is justly deserved may be in most cases.
There has been a third development concurrent with the two outlined above, far less influential in the formation of actual penalty policy even if it is of equal theoretical importance (Harding 1989). I refer to the reconceptualization of the practice of punishment arising from the work of Michel Foucault in the mid-1970s. Foucault invited us to view the practice of punishment under law as subject to general forces in society that reflect the dominant forms of social and political power — the power to threaten, coerce, suppress, destroy, transform — that prevail in any given epoch. And he also cultivated a deep suspicion toward the claims that contemporary society had significantly humanized the forms of punishment by abandoning the savage corporal brutality that prevailed in the bad old days, in favor of the hidden concrete-and-steel carceral system of the modern era (Foucault 1977).
Foucault’s insights arose from a historical, socioeconomic, and psychodynamic approach to punishment. Professed goals of punishment, norms constraining the use of power in the pursuit of these goals, the aspiration for justice in punishment — all these, if Foucault is right, turn out to mask other (not necessarily conscious) intentions among reformers that belie the ostensible rationality (not to say rationalization) of their aims since the Enlightenment. Thus, the movement against capital punishment in the late eighteenth century is not to be explained (or, presumably, justified) by the influence of conscious, rational utilitarian calculations of the sort that Beccaria and Bentham argued had persuaded them to oppose the death penalty (Bedau 1983, Maestro 1973). It is explained instead by disenchantment with the theatrical, dramaturgical, aspects of public executions and a self-deceiving humanitarian impulse that merely shifted but otherwise left unaltered the nature and locus of the power wielded over criminals by society — perfectly embodied in Bentham’s visionary carceral scheme, the notorious Panopticon prison (Semple 1993).
Two features at least of Foucault’s explorations into the practice of punishment in Western society deserve mention here. First, he ignored the analytical distinctions that philosophers in the Anglo-American tradition had made familiar (to be discussed below). None plays any visible role in his account of the theory or practice of punishment. Some interpreters might not only acknowledge this, they would go further and argue that Foucault offers no philosophical views about punishment at all — because conceptual and normative analysis and the search for principles on which to rest policy are at best obscurely and indirectly pursued in his writings. Instead, so this interpretation declares, he is just a social commentator (or some other form of critical humanist) (Garland 1990). But this interpretation fails to do him justice.
Foucault’s views are, at least in part, unmistakably philosophical. Not only do they issue in claims that are not obviously testable empirical hypotheses, they involve large-scale reflections on and reinterpretations of human nature, public institutions, and the point of our punitive practices.
Second, Foucault implicitly challenges the very idea of any form of justification of the practice of punishment. He is, in his way, a paradigmatic thinker whose views about punishment can be called anti-foundationalist. What emerges from his account is the view that what passes for the justification of punishment (as with any other social practice) is inextricably tied up with assumptions, beliefs–in short, with ideology–that have no independent rational foundation.
The very idea that penal institutions can be justified is suspect, self-delusive. Foucault more than any other recent thinker who has reflected on the institutions of punishment in western society, has brought historicist, anti-analytic, and anti-foundationalist convictions together, thus sowing deep uncertainty over how and even whether to address the task of justifying punishment.
In all these respects, Foucault must be seen as the modern successor to Friedrich Nietzsche — Foucault’s great albeit unacknowledged predecessor in the philosophy of punishment. More than any thinker before or since, Nietzsche understood the way punishment is “overdetermined by utilities of every sort” and survives now under this, now under that interpretation of its purposes — -because the desire to punish (and thereby subordinate, coerce, transform) other persons is so deeply rooted in human nature (Nietzsche 1887).
The cumulative effect of these forces, political and intellectual, has been to undermine confidence in the classic Enlightenment or liberal view of punishment found, for example, in Hobbes, Locke, Bentham, and Mill. Perhaps this is an exaggeration; one might argue that since it is unclear just what a liberal view of punishment really is, successfully undermining it is equally uncertain. Liberalism in punishment, it is true, has no canonical formulation; instead, it has been multiply ambiguous during its career of more three centuries, as scrutiny of Beccaria’s influential proposals for reform at the zenith of the Enlightenment show (Beccaria 1764). What is needed is a reassertion, reformulation, and redeployment of recognizably liberal ideas in the theory of punishment (see the discussion below).
2. Theory of Punishment
The prevailing features in the modern theory of punishment were developed by analytic philosophers half a century ago. The theory in the Anglo-American philosophical world was and still is governed by a small handful of basic conceptual distinctions, self-consciously deployed by virtually all theorists no matter what substantive views they also hold about punishment. The terminus a quo of these ideas are the influential writings of H.L.A. Hart (1959) in England and John Rawls (1955) in the United States. Though both Hart and Rawls pass muster as centrist liberals, they believed these analytic distinctions to be ideologically neutral.
• Defining the concept of punishment must be kept distinct from justifying punishment. A definition of punishment is, or ought to be, value-neutral, at least to the extent of not incorporating any norms or principles that surreptitiously tend to justify whatever falls under the definition itself. To put this another way, punishment is not supposed to be justified, or even partly justified, by packing its definition in a manner that virtually guarantees that whatever counts as punishment is automatically justified. (Conversely, its definition ought not to preclude its justification.)
• Justifying the practice or institution of punishment must be kept distinct from justifying any given act of punishment. For one thing, it is possible to have a practice of punishment — an authorized and legitimate threat system — ready and waiting without having any occasion to inflict its threatened punishment on anyone (because, for example, there are no crimes or no convicted and sentenced criminals). For another, allowance must be made for the possibility that the practice of punishment might be justified even though a given act of punishment — an application of the practice — is not.
• Justification of any act of punishment is to be done by reference to the norms (rules, standards, principles) defining the institutional practice — such as the classic norms of Roman law, nulla poena sine leges and nulla poena sine crimen (no punishments outside the law, no punishments except for a crime). Justification of the practice itself, however, necessarily has reference to very different considerations — social purposes, values, or goals of the community in which the practice is rooted. The values and considerations appropriate to justifying acts are often assimilated to those that define judicial responsibility, whereas the values that bear on justifying the punitive institution are akin to those that govern statutory enactments by a legislature.
• The practice of punishment must be justified by reference either to forward-looking or to backward-looking considerations. If the former prevail, then the theory is consequentialist and probably some version of utilitarianism, according to which the point of the practice of punishment is to increase overall net social welfare by reducing (ideally, preventing) crime. If the latter prevail, the theory is deontological; on this approach, punishment is seen either as a good in itself or as a practice required by justice, thus making a direct claim on our allegiance. A deontological justification of punishment is likely to be a retributive justification. Or, as a third alternative, the justification of the practice may be found in some hybrid combination of these two independent alternatives. Recent attempts to avoid this duality in favor of a completely different approach have yet to meet with much success (Goldman 1982, Hoekema 1986, Hampton 1984, Ten 1987).
Acknowledgement of these distinctions seems to be essential to anything that might be regarded as a tolerably adequate theory of punishment.
Two substantive conclusions have been reached by most philosophers based in part on these considerations. First, although it is possible to criticize the legitimacy or appropriateness of various individual punitive acts — many are no doubt excessive, brutal, and undeserved — the practice of punishment itself is clearly justified, and in particular justified by the norms of a liberal constitutional democracy. Second, this justification requires some accommodation to consequentialist as well as to deontological considerations.
A strait-laced purely retributive theory of punishment is as unsatisfactory as a purely consequentialist theory with its counter-intuitive conclusions (especially as regards punishing the innocent). The practice of punishment, to put the point another way, rests on a plurality of values, not on some one value to the exclusion of all others.
So much by way of review of the recent past as a stage setting for what follows — a sketch of what I take to be the best general approach to the problem of defining and justifying punishment.
Justifications of Punishment As a first step we need a definition of punishment in light of the considerations mentioned above. Can a definition be proposed that meets the test of neutrality (that is, does not prejudge any policy question)? Consider this: Punishment under law (punishment of children in the home, of students in schools, etc., being marginal rather than paradigmatic) is the authorized imposition of deprivations — of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens — because the person has been found guilty of some criminal violation, typically (though not invariably) involving harm to the innocent. (The classical formulation, conspicuous in Hobbes, for example, defines punishment by reference to imposing pain rather than to deprivations.)
This definition, although imperfect because of its brevity, does allow us to bring out several essential points. First, punishment is an authorized act, not an incidental or accidental harm. It is an act of the political authority having jurisdiction in the community where the harmful wrong occurred.
Second, punishment is constituted by imposing some burden or by some form of deprivation or by withholding some benefit. Specifying the deprivation as a deprivation of rights (which rights is controversial but that controversy does not affect the main point) is a helpful reminder that a crime is (among other things) a violation of the victim’s rights, and the harm thus done is akin to the kind of harm a punishment does. Deprivation has no covert or subjective reference; punishment is an objectively judged loss or burden imposed on a convicted offender.
Third, punishment is a human institution, not a natural event outside human purposes, intentions, and acts. Its practice requires persons to be cast in various socially defined roles according to public rules. Harms of various sorts may befall a wrong-doer, but they do not count as punishment except in an extended sense unless they are inflicted by personal agency.
Fourth, punishment is imposed on persons who are believed to have acted wrongly (the basis and adequacy of such belief in any given case may be open to dispute). Being found guilty by persons authorized to make such a finding, and based on their belief in the person’s guilt, is a necessary condition of justified punishment. Actually being guilty is not. (For this reason it is possible to punish the innocent and undeserving without being unjust.)
Fifth, no single explicit purpose or aim is built by definition into the practice of punishment. The practice, as Nietzsche was the first to notice, is consistent with several functions or purposes (it is not consistent with having no purposes or functions whatever).
Sixth, not all socially authorized deprivations count as punishments; the only deprivations inflicted on a person that count are those imposed in consequence of a finding of criminal guilt (rather than guilt only of a tort or a contract violation, or being subject to a licensing charge or to a tax). What marks out nonpunitive deprivations from the punitive ones is that they do not express social condemnation (Feinberg 1965, Bedau 2001). This expression is internal, not external, to the practice of punishment.
Finally, although the practice of punishment under law may be the very perfection of punishment in human experience, most of us learn about punishment well before any encounters with the law. Thus, “authorized deprivation” must not be so narrowly interpreted as to rule out parental or other forms of “punishment” familiar to children, even though those deprivations are often ambiguous in ways that punishment under law is not.
It is helpful in assessing various candidate justifications of punishment to keep in mind the reasons why punishment needs to be justified.
• Punishment — especially punishment under law, by officers of the government — is (as noted above) a human institution, not a natural fact. It is deliberately and intentionally organized and practiced. Yet it is not a basic social institution that every conceivable society must have. It is a testimony to human frailty, not to the conditions necessary to implement human social cooperation. It also has no more than an historical or biological affinity with retaliatory harm or other aggressive acts to be found among nonhuman animals or (despite thinkers from Bishop Joseph Butler (1723) to Sir Peter Strawson (1962) to the contrary) with the natural resentment that unprovoked aggression characteristically elicits.
• The practice or institution of punishment is not necessary, conceptually or empirically, to human society. It is conceivable even if impracticable that society should not have the practice of punishment, and it is possible — given the pains of punishment — that we might even rationally decide to do without it. Not surprisingly, some radical social thinkers from time to time (and even today) have advocated its abolition (Skinner 1948, Bedau 1991).
• Punishment under law, and especially in a liberal constitutional democracy, incurs considerable costs for everyone involved in carrying it out, whatever the benefits may be. Some rationale must be provided by any society that deliberately chooses to continue to incur these costs. The matter is aggravated to the extent that society prefers to incur these costs rather than those of alternative social interventions with personal liberty that might result in preventing crime in the first place and healing the wounds of its victims (Currie 1985).
By way of expansion on some of the considerations alluded to above, we must not forget or obscure the importance of the fact that punishment by its very nature involves some persons (those who carry out punitive acts) having dominant coercive power over others (those being punished). To seek to be punished because one likes it, is pathological, a perversion of the normal response, which is to shun or endure one’s punishment as one might other pains, burdens, deprivations, and discomforts. (Only among the Raskolnikovs of the world is one’s deserved punishment welcomed as a penance.)
To try to punish another without first establishing control over the would-be punishee is doomed to failure. But the power to punish — as distinct from merely inflicting harm on others — cannot be adventitious; it must be authoritative and institutionalized under the prevailing political regime.
Finally, because the infliction of punishment is normally intended to cause, and usually does cause, some form of deprivation for the person being punished, the infliction of punishment provides unparalleled opportunity for abuse of power. To distinguish such abuses both from the legitimate deprivations that are essential to punishment and from the excesses of punitive sentences that embody cruel and inhumane punishments, one must rely on the way the former are connected to (and the latter disconnected from) whatever constitutes the sentence as such and whatever justifies it (Bedau 1972). This is especially true where punishment through the legal system is concerned, since the punishments at the system’s disposal — as well as the abuses — are typically so severe.
The general form of any possible justification of punishment involves several steps. They start with realizing that punishing people is not intelligibly done entirely or solely for its own sake, as are, say, playing cards or music, writing poetry or philosophy, or other acts of intrinsic worth to their participants. Nietzsche and Foucault are among those who would dispute this claim, and they may have history on their side. They think that human nature is such that we do get intrinsic even if disguised satisfactions out of inflicting authorized harm on others, as punishment necessarily does. Others will regard this satisfaction, such as it is, as a perversity of human nature, and will say that we retain the practice of punishment because it enables us to achieve certain goals or results.
Although punishment can be defined without reference to any purposes, it cannot be justified without such reference. Accordingly, to justify punishment we must specify, first, what our goals are in establishing (or perpetuating) the practice itself. Second, we must show that when we punish we actually achieve these goals. Third, we must show that we cannot achieve these goals unless we punish (and punish in certain ways and not in others) and that we cannot achieve them with comparable or superior efficiency and fairness by nonpunitive interventions. Fourth, we must show that striving to achieve these goals is itself justified. Justification is thus closed over these four steps; roughly, to justify a practice of punishment — if not everywhere then at least in a liberal constitutional democracy — it is necessary and sufficient to carry out these four tasks.
Unsurprisingly, no matter what actual society we find ourselves in, we can contest each of these four steps, especially the last. Just as there is no theoretical limit to the demands that can be made in the name of any or all of these tasks, there is also no bedrock on which to stand as one undertakes either a critique of existing systems of punishment or the design of an ideal system. As a result, the foundations of punishment imitate the topology of a Moebius strip — if any path is pursued far enough, it will return to itself and one loses one’s grip on what is inside and what outside the justification. Metaphor apart, the inescapable forensic quality of justification defeats all forms of what might be called linear — whether top-down or bottom-up — foundationalism.
3. Consequentialist or Deontological Justification
For several decades philosophers have (over-) simplified the picture of possible forms of normative justification in ethics, policy formation, and law into two alternatives: consequentialist and deontological. They have also undertaken to apply this distinction to the justification of punishment. By a purely consequentialist theory, I mean a theory that imposes no constraints on what counts as my fourth step in justification (see above).
The pure consequentialist views punishment as justified to the extent that its practice achieves (or is reasonably believed to achieve) whatever end-state the theorist specifies (such as the public interest, the general welfare, the common good). Most philosophers would reject this view in favor of introducing various constraints, whether or not they can in turn be justified by their consequences. Thus, a most important part of the theory of punishment is the careful articulation of the norms that provide these constraints on the practice and their rationale.
As for individual acts of punishment — typically, the sentence a court metes out to a convicted offender and the infliction of that sentence on the offender — their justification falls within the justification of the practice itself. In any case they could not be reasonably be justified purely on consequentialist grounds (as an act-utilitarian might wish to do). Sentencers lack sufficient information about all the actual or probable effects of inflicting one rather than another punishment on a given offender at a given time. They lack as well the opportunity and time to secure such information and to use it to inform their sentences.
As a result sentencers must content themselves with a largely procedural justification of most of the punishments they impose. Insofar as the system of punishment on which they rely is essentially just, none of the sentencing acts that the institution warrants are unjust (they may, of course, be unwise).
The best justification of punishment is also not purely retributivist. The retributive justification of punishment is founded on two a priori norms (the guilty deserve to be punished, and no moral consideration relevant to punishment outweighs the offender’s criminal desert) and an epistemological claim (we know with reasonable certainty what punishment the guilty deserve) (Primoratz 1989, M. Moore 1987).
It is arguable, however, whether the guilty always do deserve to be punished; it is also arguable whether, even when they do they ought always to get what they deserve; and it is further arguable whether when they ought to be punished as they deserve, the punisher always knows what it is they deserve (except in the purely procedural sense alluded to above; see also below) (Bedau 1978). We cannot meet these challenges to the deontological retributivist by insisting that punishment is nothing more than a necessary conceptual consequence of living under the rule of law (Fingarette 1978).
Even apart from the problems above, retributivists have yet to construct a nonarbitrary way of deciding what sentence the guilty offender deserves as punishment. Retributivists, ancient and modern, have always been lured by one or another form of lex talionis (Davis 1992), despite objections dating from post-biblical times to the present (Walker 1991). Nor does it suffice to abandon like-for-like retaliation in punishment in favor of restating the basic retributive principle in nontalionic form:
Severity in punishment must be proportional to the gravity of the offense. Few will argue against this principle, but it still leaves us with a spectrum of alternatives among which to choose, marked at one end by a positivistic legalism (offenders deserve whatever the penal code provides as their punishment) and at the other end by an inchoate moralism (offenders deserve whatever accords with their moral culpability and the harm they have caused).
All actual attempts to specify the penalty schedule linking crimes to their punishments fail because the proportionality principle underdetermines the schedule. There is no nonarbitrary way to locate either the end points of maximum and minimum severity defining the penalty schedule or the intervals between adjacent punishments (Pincoffs 1977). Without more information it is impossible to calculate which crimes deserve which punishments; an infinite number of different penalty schedules are equally consistent with the retributivist’s proportionality principle. And retribution cannot supply the further information needed. As a result, every penalty schedule purporting to incorporate retributive principles exclusively fails to the extent that any given punishment cannot be justified by those principles alone.
But the basic insights of retributivism cannot be merely brushed aside. There is a role for desert in a liberal theory of punishment, but its scope needs careful restriction. The retributivist relies on the assumption that the criminal laws whose violation makes one eligible for punishment protect genuine individual rights.
Were this not so, the retributivist could not claim that justice requires punishment for the violation of the law. Nor could the retributivist claim that the resentment or indignation directed toward offenders is fitting, rather than merely ill-disguised anger. Retributivism, whether in law or morals, without an appeal, tacit or express, to the justice of punishment is inconceivable — or inconceivably distinct from mere retaliation or revenge (Nozick 1981, Henberg 1990).
Once this is acknowledged there emerges an unmistakable forward-looking point to introducing liability to punishment for law violation, publication of this liability so that it works as a threat, and expectation of increased compliance with the law because of dislike of the perceived punitive threat by most people and their unwillingness to risk incurring what is threatened for noncompliance. Thus, risk of punishment provides an incentive for any normal person to comply with just laws protecting individual rights. No purely backward-looking conception of the practice of punishment, focused exclusively on the desert of the offender, can accommodate provisions for this incentive.
On the view sketched so far, a system of punishment under law is fundamentally a technique of social control (Gibbs 1975), and its employment is justified to the extent that it actually protects such social justice as society through its laws has achieved. This purpose is external, not internal, to the practice of punishment. To accept this conception of punishment is to concede the central claim of the consequentialist, not that of the retributivist. The institution of punishment so conceived is thus not justified on purely deontological or on purely consequential grounds, because punishment manifests some features of each line of consideration.
Nevertheless, punishment has essentially retributive elements in it, conceptually and normatively. Any given act of punishment may look starkly retributive to the one who undergoes it — the sentence imposed is a deprivation inflicted on someone found guilty, and not on anyone else, and it is imposed solely because of that finding. What could be more retributive than this?
Against this background we can now consider a step-by-step argument for a liberal justification of punishment. The general idea has been presented in various forms and fragments over the past half century by many writers.
4. Liberal Justification
We can begin with an empirical generalization of unimpeachable reliability: Some kinds of intentional human conduct are harmful to others, and it is inappropriate to expect (teach, require) people who have been victimized by such harm either to forgive those who harmed them or to suffer the harm in silence. (Private retaliation must also be pre-empted by general confidence that offenders will be arrested, tried, convicted, and sentenced by the authorities.)
In a just society, undeserved victimization is understood to violate individual rights and is therefore prohibited by law and is punishable. Thus the color and texture of any possible justification for punishment will depend upon more general political and moral theory, consistent with the responsibilities for legal protection afforded by a just society. Justification for punishment under law thus emerges as a contingent matter, inescapably dependent on other and deeper normative considerations that only a theory of social justice can provide.
To repeat, in a society that takes justice seriously, such intentionally harmful conduct will be prohibited by law and, and if and when it occurs, condemned under the law. To do otherwise would be to fail to protect and vindicate the rights of individuals that the criminal law is principally designed to protect. The central instrument of such condemnation is the penal sanction attached to the law that defines certain harmful acts as crimes.
In a just society that is also a rational society, unlawful harmful conduct is preferably prevented before the fact rather than punished after the fact. From society’s point of view, compliance under threat is much to be preferred to noncompliance followed by arrest, trial, conviction, sentence, and punishment. (There are exceptions, of course; justified civil disobedience is one of them.) But compliance is not so valuable that it is worth trying to increase it at any price, especially at the price of irreparable invasions of personal liberty.
Thus, a person’s willing compliance with the law as a consequence of having internalized the norms of a just society is preferable to one’s unwilling compliance or intentional noncompliance. But if willing compliance is not forthcoming, then society must settle for second-best — unwilling compliance — since it is preferable to noncompliance. Prohibition by law plays an essential role in securing grudging compliance, and the principal vehicle for such prohibition is the punitive sanction attached to violation of the criminal law. No doubt, non-deterrent effects of the sanction system are more important for general compliance than are the deterrent effects. Still, once such sanctions are in place, they create public liability to authorized punishment.
Even in a just society, not every person will comply with the law, and not everyone who does comply will do so out of respect for the rights of others, that is, out of recognition of others as persons with rights deserving mutual respect. Here we encounter in another form the fundamental non-deontological principle on which the system of punishment is built: It is better to increase law compliance by liability to sanctions of those who would otherwise violate the law than it is to permit them to act on their perverse autonomy without any socially imposed cost to themselves, since that would require us to tolerate an increase in the victimization of the innocent. For this reason, rational self-interested persons acting behind a veil of ignorance would choose to impose on themselves and on others a liability to criminal sanctions for certain law violations.
If the punitive sanction is to function effectively as a preventive of noncompliance, then it must be perceived not only as a legitimate threat but also as a credible threat. Its legitimacy is established by its protection of individual rights, its authorization by constitutional procedures, and its administration through due process and equal protection of the law. Its credibility is established by its being generally perceived to be both reasonably severe (hence unpleasant) and effectively enforced (hence arrest and its consequences is likely for anyone who does not comply).
There are, however, constraints in the use of penal threats and coercion even to preserve a just social system. Four are particularly important for a liberal theory of punishment.
1. Punishments must not be so severe as to be inhumane or (in the familiar language of the Bill of Rights) “cruel and unusual.”
2. Punishments may not be imposed in ways that violate the rights of accused and convicted offenders (“due process of law” and “equal protection of the laws”).
3. Punitive severity must accord with the principle of proportionality: The graver the crime, the more severe the deserved punishment. (The deserved punishment so defined might legitimately not be imposed in cases where a slight excess over deserved severity promises to yield considerable reduction in the crime in question, thanks to the elasticity of the crime relative to the severity of the punishment.)
4. Punitive severity is also subject to the principle of minimalism (less is better), that is, given any two punishments not ruled out by any of the prior principles and roughly equal in retributive and preventive effects for a given offense and class of offenders, the less severe punishment is to be preferred to the more severe.
Conviction of an accused offender under laws that satisfies the foregoing criteria establishes an individual’s eligibilityfor punishment. His liability to punishment is determined by his own acts and omissions in regard to those laws. All and only punishments that are the product of a system of law consistent with the foregoing constraints may be said to be deserved by the offender.
Deserved punishment, insofar as it exists at all, thus emerges as a result of “pure procedural justice” (Rawls 1971). That is, we have only the vaguest idea of the just or deserved punishment for a given offender guilty of a given crime apart from the sentencing schedule provided by the laws of a just society (and thus laws that conform to the constraints above). The punishment deserved is the punishment authorized under a fair penalty schedule; no other conception of deserved punishment can be defended; the perennial lure of an illusory independent criterion for desert, founded ultimately on intuition, as well as of utilitarian calculations, must be resisted. Given this account of desert, anyone both liable and eligible for punishment deserves to be punished, and ceteris paribus ought to be punished (except, for example, if the victim decides to extend forgiveness).
The argument for imposing deserved punishments so defined on guilty offenders is thus in part an argument from consistency. It is inconsistent to specify liability and eligibility conditions for punishment and then not apply the sanction so authorized when the facts in a given case show that it is warranted. It is unfair to the law-abiding for law-breakers to incur no socially approved cost for their misconduct; it is unfair because it would create a class of harmful free riders in the society.
The socially approved costs of crime imposed on offenders consist mainly in the deprivations authorized by the punitive sanction. Fairness to the law-abiding also suggests that society ought to expend a reasonable fraction of its resources in combating crime and preventing victimization.
The creation of a punitive sanction in the name of fairness and under the circumstances specified above is justified. So is the infliction of such a sanction in the name of compliance with the law. Therefore, the practice of punishment, including creating liability to punishment, using sanctions as a threat and an incentive for compliance and actually inflicting the punishment where eligibility conditions are met, is justified.
The foregoing argument incorporates retributive and consequentialist considerations. It is better than a pure retributivism because it shows why a system of punishment is needed and how that system is to be nested into the larger political and moral concerns of a just society. It allots a clear and defensible function to punishment (social defense) without yielding to atavistic demands for retaliation or to illusory deontological demands for pure retributive justice, and without pretending that the punishments it metes out are “deserved” in any fundamental sense.
The argument acknowledges the sovereign choices of the individual without invoking any awkward and paradoxical “right to be punished” (Morris 1968). It is better than a pure consequentialism, because it constrains punitive interventions with individual liberty to the bare minimum consistent with achieving the purpose of punishment. Through the punishment system, all are given fair warning that they put their own rights at risk if they intentionally engage in certain kinds of harmful conduct (H.L.A. Hart 1959).
The system of punishment that emerges under this theory is liberal and non-paternalistic, respects the nominal autonomy of all persons equally, and acknowledges the contingency of its justification as applied in any given case.
It is also true that the system of punishment that emerges under this argument leaves punishment in any actual individual case something of a ritual — in some cases an empty ritual, and in any case a highly formalized act whose exact retributive and incapacitative effects are uncertain. Acts of punitive deprivation must be imposed on each convicted offender without the comfort of believing, much less knowing, that the purposes for which the system of punishment was designed and maintained will really be advanced by inflicting a given punishment.
Too much punishment vs. too little punishment plagues every actual sentencing decision. Some have been led by this fact to view punishment with considerable distrust, because we cannot count on it having any beneficial effect on the punished (Duff 1986) — or on the rest of society. Others are less troubled by this because they focus on how the expressive function of punishment under law serves society by making punishment of whatever degree a “symbol of infamy,” whatever its other effects may be (Feinberg 1965).
Notice, finally, that the entire argument for the justification of punishment unfolds in the belief that alternative, non-punitive methods of social control have been examined and rejected (or severely limited in scope) on the ground that they will not suffice — or will not work as well as punitive methods in securing compliance with just laws.
Many details remain to be specified before we have a comprehensive liberal theory of punishment in hand. Philosophy can, of course, help supply certain desiderata of the theory, such as specification of the quality and quantity of deprivations (the modes of punishment) appropriate to include in the penalty schedule; construction of the schedule coordinate with the class of crimes; identification of subordinate norms to supplement those already mentioned, which serve as constraints on the schedule and the imposition of sanctions on any given offender; and specification of the norms that make it appropriate to reduce or even waive punishment in favor of some nonpunitive alternative response in a given case (K. Moore 1989).
But philosophy alone cannot provide the necessary details; philosophical argument by itself would underdetermine a penal code and has no means to administer one. Yet the heart of a liberal theory of punishment in practice lies in its code of sanctions and their fair administration. Further development of this theory, and its full policy implications, must take place in another forum.