What probation says, to whom and for whom?
This post is a slightly revised version of a paper on Probation and Social Solidarity that I have just present to the ESC Working Group on Community Sanctions at the European Criminology Conference. A few people asked to read it, and since I’d value comments on it as a ‘work in progress’, I thought I’d post it here. Be warned, it is pretty dense… as a result of being severely edited for a very short presentation slot.
In the paper we’ve just heard, Gwen (Robinson) has made the case that ‘Punishment and Society’ scholarship has been negligent in failing to assess the meaning and significance of probation as a penal institution. But equally, we might argue that probation scholarship itself has often been under-theorised. In those few cases where probation has been the empirical object of theoretical work, it has tended to draw on the ideas of Foucault or, more rarely, Marx. We might crudely summarise the results as converging in an analysis which sees probation primarily as a disciplinary technology that has been directed at the urban poor, at least where and when social and economic conditions lend it greater appeal than imprisonment.
What is missing in these accounts – and much more apparent in historical and contemporary debates about imprisonment — is an analysis of the significance of probation’s cultural contexts, forms and functions. This paper aims to begin to address these questions through a re-reading of Durkheim’s work on social solidarity and on penal evolution, stimulated in part by its recent re-appraisal by David Garland (2013).
Punishment and social solidarity
Durkheim argued that social solidarity depends on the unity of moral beliefs in social groups (Giddens, 1978). Punishment is a passionate collective reaction to violations of these core shared beliefs; its rituals are important as a means of allowing us to communicate, reaffirm and reinforce them. As Garland (2013: 25) puts it, offending shocks ‘healthy’ (i.e. well-socialized) consciences into punishment as a reaction:
‘The essence of punishment, [Durkheim] claims, is irrational, unthinking emotion driven by outrage at the violation of sacred values or else by sympathy for fellow individuals and their sufferings’ (Garland, 2013: 25).
In fact, these different two sources of outrage (religious and human) – though often intertwined – partly reflect the two different forms of social solidarity that Durkheim distinguishes. In simpler societies, solidarity is ‘mechanical’; in more complex societies it is ‘organic’. In the first, punishment expresses a collective response to the violation of the sacred; in the second, it expresses collective sympathy for the suffering of a fellow human individual.
Mechanical solidarity is characteristic of societies that are structured and dominated by the needs and interests of fairly small collectives whose unity of moral belief is religious in type: offending violates those sacred values to which every individual is subordinated. Law and sanctions here are primarily repressive rather than restitutive; their function is to express and to reinforce the conscience collective.
The division of labour in modern societies occasions the transition to more organic forms of social solidarity. Cohesion around shared values is much less apparent in these ‘scaled-up’ social groupings. Although repressive law and sanctions continue to exist and to regulate an underpinning code, the development of increased social diversity and the necessity of complex inter-group cooperation require that code to be based on moral individualism, not on collective values imposed by any particular group. For this reason, restitutive law and sanctions develops apace to regulate intra- and inter-group cooperation in ways which rely less on repression and more on restoration to health of the social organism.
Garland’s (2013: 36) recent re-analysis of these ideas makes two important points. Firstly, he insists on a reading of Durkheim which stresses that ‘the social processes of punishment, insofar as they are social, presuppose solidarity as well as reinforce it’. In other words, punishment is both a project solidarity-building and a product of it. Secondly, he argues that, in Durkheim’s later discussions of organic solidarity, he relies less on notions of interdependence (linked to the division of labour) and more on ‘the cult of the individual as an overarching moral framework’ (Garland, 2013: 36).
Though Durkheim does not refer directly to the two forms of solidarity in his famous essay Two Laws of Penal Evolution, that essay does serve to elaborate them. The first (‘quantitative’) law is that:
‘The intensity of punishment is the greater the more closely societies approximate to a less developed type – and the more the central power assumes an absolute character’. (Durkheim, 1973: 285)
The forms of solidarity speak to the first of these two forces for penal moderation. However, Durkheim is careful to distinguish this from a second moderating force; i.e. the diminution of the absolute power of the sovereign. Perhaps most importantly, he is sensitive to the possibility that the relationships between these two forces – social solidarity and political authority — are contingent and need not always be aligned.
In his more prescriptive writings, Durkheim argued for a conception of the state as the ‘social brain’. Its job is to absorb the information delivered by the social senses; to interpret, to reflect, to moderate, to regulate, to guide and to inform – but not to act. Extending the metaphor, the organs of the social body (and its hands, which do the work) are to be found not in the state itself but in wider ‘political society’. In Professional Ethics and Civic Morals (1958), Durkheim argued that a well-functioning polity depended on a kind of balance of power between the state, civic associations and the citizen. The citizen had rights and reciprocal duties. The state had to hold in check the potentially repressive power of civic associations and to balance their competing interests. But equally, the modern state was far too remote from the individual to act as an effective agent of socialization and moral regulation – and, Durkheim argued, it would become repressive should it seek to do so. Since the increasing geographical and social mobility of modern societies meant that the family’s capacity to sustain moralizing functions was also limited, it followed that only civic associations could sustain the professional ethics and civic morals on which a well-functioning society relied. We will return to this ‘balance of powers’ later.
Durkheim’s second (‘qualitative’) law is stated thus:
‘Deprivations of liberty, and of liberty alone, varying in time according to the seriousness of the crime, tend to become more and more the normal means of social control’ (Durkheim, 1973: 294).
His explanation of this development in the form or style of punishment relies heavily on his account of the rise of moral individualism. In this regard, he distinguishes between ‘religious’ and ‘human’ criminality; the former being against the collective (or their deity), the latter against the individual. To the extent that offending ceased to violate the sacred and became an offence of one citizen against another, forms of brutalizing punishment were less likely to be invoked. With the rise of individualism, the collective sensibilities of the audience of such punishments shifted; while we retained a sense of outrage now rooted in fellow-feeling for the individual victim, we could not so easily yield to our punitive passions by feasting on the spectacle of the ritualized abuse of the offender; s/he had become a moral individual too.
The rise of the prison is also accounted for, in part, because of its usefulness as a technological (or architectural) fix for a social problem whose contours were changing. A new way had to be found of (literally) holding the individual to account. Durkheim recognizes that this ‘holding’ originally developed as a prelude to punishment, rather than as a punishment in its own right. However, he argues that, in this case, the social function followed the new penal form; once the pains of (pre-trial) imprisonment became apparent, its utility as a punishment became established. And as it came progressively to be defined by its essential property – the deprivation of liberty — its punitive character became less and less associated with the particular conditions or peculiar hardships of confinement. So, it was not merely that the prison displaced the gallows (and the stocks); it was also that the penal severity of the prison diminished over time.
However, Durkheim’s essay ends, not with a celebration of the relentless and civilizing progress of penal moderation, but with recognition that penal law was in a state of crisis. By the turn of the 20th century he had identified a failure of modern institutions of punishment to find more adaptive ways of fulfilling their functions in terms of building and reinforcing social solidarity, but in a manner consistent with modern moral sensibilities. Moreover, he foresaw the expansionism implicit in coming to understand and define ‘human’ (as opposed to religious) crimes in ever-broader ways.
Probation, solidarity and penal evolution
There is too little time today to develop a Durkheimian analysis of probation, but I can at least begin to suggest what some of its preoccupations might be. First and foremost, such an analysis would be less concerned with what probation does to offenders (and with what effects), and more concerned with what probation communicates on behalf of and to society; in other words with how it performs its penal function. More specifically, three inter-related sets of questions suggest themselves:
- What forms of social solidarity do differently constituted institutions and forms of probation express and reinforce, and how?
- With respect to the nature of political authority (and relationships between the state, civil society and the individual citizen), to whom and on whose behalf do different forms of probation speak?
- In what ways is probation’s message(s) or ‘performance(s)’ shaped by the technologies available to it?
With respect to solidarity, the progenitors of probation were typically committed not just to moral individualism but to building and working through the types of civic associations prototypical of organic solidarity. Thus penal reformers, police court missionaries and others sought to rescue offenders from de-moralizing experiences of imprisonment and to build or restore their character through example, temperance and/or religious instruction. The available architecture was the legal order itself. In many states, the order represented a suspension of punishment and the establishment of a quasi-civil contract between the court and the offender. It was, in essence, a promise of good behaviour and of restitution or repair – even if that promise was directed principally at the offender him or herself. At the same time, the promise was subject to surveillance; and more repressive sanctions loomed for promise-breakers.
A little later, the pioneers of more professionalized forms of probation developed new technologies: the same legal architecture and supervisory relationship was now to be furnished with social diagnosis and social casework. Just as the prison began as a place of pre-trial detention that came to be seen as ‘punishing’ and then as a means of punishing, so the technique of social enquiry began as a mode of investigation and classification but evolved into a form of and rationale for intervention with scientifically informed reformative potential (Garland, 1985, Vanstone, 2004, McNeill, 2005).
Probation’s position in the mid-20th century as an expression of a wider current of (penal) welfarism seems intelligible both as a product of organic solidarity and as a solidarity-building project. What probation ‘said’ in this era was that society needed to enact a commitment to an inclusive (if somewhat over-bearing) vision of organic solidarity; one which insisted that the delinquent acquire the motivation and capacity to live up to his or her civic obligations, but needed and deserved help to do so. Where the family had failed to foster such sensibilities, probation would step in and connect or reconnect the delinquent to pro-social civic associations (Mahood, 1991).
From a Durkheimian perspective, the professionalization of probation need not have been a problem in itself; indeed it might have served to clarify its values and its message – and to sharpen its moral performance. But the conjunction between the professionalization of probation and its progressive colonization by the state certainly would have alarmed him as state intrusion into ‘governing the soul’ (Rose 1980). For Durhkeim as for Foucault (or even Althusser), that might have seemed a new and insidious form of absolutism. Probation thus shifted from its locus as a professional office of the courts (or sometimes of local authorities), rooted it in what might be conceived as institutions of civic society (or at least as institutions independent of the executive). It has become instead, at least in some places, a penal ‘service’ run by the state, or even worse (in Durkheim’s terms) a service commissioned by the state from an amoral market; a shift which undermines its moral status and changes its moral message.
Where this convergence of professionalization and centralization has occurred, it has allowed the redirection of late-modern probation from being a project of building and reinforcing organic solidarity, to being a project of managing threats to mechanical solidarity (at least from those its state sponsors construct as outsiders). As with many other aspects of state-owned or state-commissioned justice and security, what probation says now is that we are in danger, and that we need the state – and the market — to order and organize our protection.
Returning, in closing, to the question of probation and solidarity, this re-reading of Durkheim makes clear that probation’s future development – like punishment’s — will depend less on evidence of its ‘effectiveness’ or ‘quality’ and more on shifting forms of social organization; on their expression in terms of changing moral sensibilities; and on the changing dynamics of political or governmental authority.
The important practical question is whether, how and under which social and political conditions probation might resist or moderate these forces. To begin to answer it, we need to examine much closely, in a range of different contexts (historical and geographical), what it is that probation has communicated (or failed to communicate) about social solidarity, to whom and for whom, and under what forms of political authority?
 A paper presented at the European Criminology Conference, Budapest, 4-7th September 2013. I am very grateful to my colleague Matt Dawson for his advice and assistance in interpreting Durkheim for the purposes of this paper.
 More recent technological innovations — whether risk assessment tools or offending behaviour programmes or electronic monitoring — need to be analysed in the same way – not for their putative instrumental utility, but for their social meanings.
 A little later, community service emerged as a different expression of the same message: supported restitution or reparation would act as the socializing, moralizing discipline, but the means of repair would be unpaid work itself rather than the labour of personal transformation.
 Though we have said too little about it, Durkheim’s rarely acknowledged recognition of the potential for class conflict within organic solidarity (at least where laissez faire capitalism sets the interests of the rich and poor so clearly at odds) also anticipated the exclusionary dynamics of complex, late-modern societies, and of the rising inequalities and struggles for political capacity that characterize them, under the pressures of globalization.