The sociology of punishment and punishment today
Modern punishment has created a sense of its own inevitability and of the necessary rightness of the status quo. Our taken for granted ways of punishing have relieved us of the need for thinking deeply about punishment. The institution of punishment conveniently provides us with a definition of what criminality is and how it will be sanctioned, how much punishment is appropriate and what emotions can be expressed, who is entitled to punish and wherein lies their authority to do so. They are authoritatively settled, at least in principle, and only matters of detail need to be concluded - details which can be left to experts and administrators in specialist institutions set aside for that purpose.
Through repeated use and respect for their authority, these instituted ways of doing things create their own ‘regime of truth’ which simultaneously shores up the institutional structure and closes off any fundamental questions which might undermine it. The penal system’s very existence helps us to forget that there are other answers to these problems are possible: that institutions are based upon the convention rather than nature.
But institutions and their regimes are not unshakable or beyond challenge, particularly where they fail to serve needs, contain conflicts, or answer troublesome questions in a way that is perceived as satisfactory. And, despite their institutional girding and a historical entrenchment stretching back to the early nineteenth century, a growing sense of doubt has now begun to emerge around our modern penal practices. This shift of attitude began to emerge towards the end of the 1960s when rising crime rates, growing prison unrest, and the collapse in faith in the rehabilitation ideal combined to undermine confidence in ‘penal progress’ and the inevitability of ‘penal reform’. The new era has been one of continuing crisis and disruption in a penal system which no longer takes seriously the rehabilitative values and ideologies upon which it was originally based. Conventional wisdom appears to be increasingly to be ‘irrational’, ‘dysfunctional’, and counter productive. Like the crime it is supposed to deal with, punishment is now days is seen as a chronic social problem.
The most celebrated discussion of punishment’s failure is to be found in the work of Michael Foucault, who argued that penological failure has been a persistent and indeed a ‘functional’ characteristic of the modern prison system since its inception. Lawrence Stone’s view was shared by many, that 20th century prisons survive simply because they have taken on a quasi independent life of their own, which enables them to survive the overwhelming evidence of their social dysfunction. This extends with slightly less force to probation, fines, and community corrections.
Nowadays, punishment appears to lack a future - or at least a vision of one which might be different or preferable to that which currently prevails. All social institution have a margin of failure or ineffectiveness. If the institution is meeting normal expectations and if its overall direction and basic legitimacy are unchallenged, then such failures are of no great consequence.
We need to remind ourselves that the phenomena we refer to as ‘punishment’, is in fact a complex set of interlinked processes and institutions, rather than a uniform object or event.
Punishment then, is not reducible to a single meaning or a single purpose. It is not susceptible to a logical or formulaic definition because it is a social institution embodying and condensing a range of purposes and a stored up depth of historical meaning. To understand ‘punishment’, one has to explore its many dynamics and forces and build up a complex picture of the circuits of meaning and action within which it currently functions.
Punishment here is taken to be the legal process whereby violators of the criminal law are condemned and sanctioned in accordance with specified legal categories and procedures. This process itself is complex and differentiated, being composed of interlinked processes of law making, conviction, sentencing and the administration of penalties. It involves discursive frameworks of authority and condemnation, ritual procedures of imposing punishment, a repertoire of penal sanctions and a rhetoric of symbols, figures, and images by means of which the penal process is represented to it’s various audiences.
Although legal punishment is understood to have a variety of aims, it’s primary purpose is usually represented as being the instrumental one of reducing or containing rates of criminal behaviour. It s thus possible to conceive of punishment as being simply a means to a given end - to think of it as a legal approved method designed to facilitate the task of crime control.
In some instances, certain theorists have gone so far as to deny punishment’s crime control function altogether, arguing that penalty is not well adapted to this particular end, and that therefore some other end must be posited to explain its character. Emile Durkheim’s declaration that ‘if crime is not pathological then the purpose of punishment can not be to punish it’. Writers such as Mead, Rusche and Kirchheimer, and more recently Michael Foucault point to the failure of punishment as a method of crime control and argues that it is badly adapted to this end, before going on to discuss alternate ways of understanding the phenomenon.
Punishment is a delimited legal process, but its existence and operation are dependent upon a wide array of of other social forces and conditions. These conditioning circumstances take a variety of forms - some of which have been explicated by historical and sociological work in this field. Thus, for example, modern prisons presuppose definite architectural forms, security devices, disciplinary technologies, and developed regimes which organise time and space - as well as the social means to finance, construct and administer such complex organisations. And as recent work has shown, specific forms of punishment are also dependent for their support upon less obvious social and historical circumstances including political discourses and specific forms of knowledge, legal, moral, and cultural categories, and specific patterns of psychic organisation or sensibility. It is a product of tradition as much as present policy: hence the need for a developmental as well as functional perspective in the understanding of penal institutions. It is only by viewing punishment against the background of these wider forms of life and their history that we ca begin to understand the informal logic which underpins penal practice.
Like all social institutions, punishment interacts with its environment, forming part of the mutuality constructing configuration of elements which make up the social world.