Offender supervision and the penal state

Those of us who attended the European Society of Criminology conference in Budapest last week had the pleasure of hearing Prof David Garland’s (of NYU and Edinburgh) plenary address on ‘Cultures of Control and Penal States’. Since his argument seems so important for the next (comparative) phase of our work, I thought I’d offer this brief summary of it.

Garland’s central argument was that in seeking to understand and explain historical and contemporary shifts in penal systems, policies and practices, we need to focus more on the ways in which political mechanisms and institutions (penal states) translate social and cultural forces into particular penal outcomes. Though he has done as much as anyone (in his 2001 book ‘The Culture of Control’) to elaborate these broader social and cultural currents, his more recent work (‘Peculiar Institution’) on the death penalty in the USA has convinced him that a closer reading of political mechanisms and institutions is essential in making sense of developments within states and comparisons between states.  He suggests we need to escape our ‘sociological bias’ — looking for deep background causes — and to study proximate causes too. Penal policy and practice, he argues,  is ‘always and everywhere a deployment of state power’; one that translates and moderates social and cultural forces.

So how does the deployment of state power differ in different states and what exactly are the relationships between the state itself and the penal state? What does the penal state mean? For Garland (implicitly in contrast to Loic Wacquant’s use of the term), the term ‘the penal state’ it is not critical or evaluative, it is descriptive. It refers to the governmental authorities that make penal rules. It refers to penal governance and leadership rather than to the penal apparatus. The first is the penal state; that latter is penality itself. The penal state ‘refers to those aspects of the modern state that make penal law and direct the power to punish’. As such it involves elements of the Executive, Parliament and the Judiciary, as well as to the leadership of criminal justice agencies.

Garland went on to explain five key dimensions by which penal states might vary:

1. State  autonomy: refers to the extent to which the state is independent of social forces refracted through the institutions of civil society or, conversely, to what extent social forces dictate state conduct.

2. Internal autonomy: refers to the relative indepenence of the penal state within the state itself  and thus to its degree of independence from other state institutions. In other words, it concerns the extent to which penal officials themselves have the power to shape penal outcomes.

3. Control: Different nations allocate the power to punish differently — at the national, regional or local level – and sometimes share this power in significant ways with others through transnational institutions (in our case consider the role of EU and the Council of Europe, as well as the European Court for Human Rights). Control is also distributed differently across the penal process: different actors compete for control (prosecutors, judges, prison officials, probation services, public/private partnerships). These distributions of power change over time. Here, Garland invoked Foucault’s ‘declaration of carceral independence’ refering to the power of officials to shape the contours of punishment. But he argued that, more recently, the state has sought to take back these powers, at least in some jurisdictions.

4. Modes of power: refers to quantitative and qualitative aspects of penal power; to how much power is exercised but also to the ways in which it is exercised. Inevitably this also involves modes of knowledge expressed in how penal actors think about penal objectives, techniques and practices. These modes of power have both negative and positive dimensions; they involve both incapacitating or capacity-building forms of penal power.

5. Power resources: refers to the extent to which a penal state has capacity. This is not just about the scale of the available infrastructure (i.e. numbers of prison places or probation officers) but all sorts of systems capacity — institutional, professional and academic. It speaks not just to economic or physical capital, but also to the cultural capital represented in knowledge, research and evidence. In this respect, he noted that negative (penal) power is easier to operationalise, not least because it can operate in relative isolation; by contrast, positive (capacity-building) power requires coordination with social and economic forces outside penality.

Garland’s provisional conclusion (this being a work in progress) was that the penal state is not determinative of the nature or operation of penality on its own; but that it helps to explain how and why in different places we find different penal responses to broader social and cultural currents.

Those of us involved in the Action who talked about this afterwards immediately saw the usefulness of this as a framework  that we might develop and apply in the next stages of our work. As a network of 21 countries (since Serbia has just joined!), we have a unique opportunity not just to elaborate the contours of the penal states concerned, but also to ensure that supervision features as much in the substance of these sorts of comparative analyses as imprisonment. We are also well placed to explore the spaces between the penal state and penality itself (for example, considering the relative autonomy of practitioners within the penal state), and to examine the ways in which multi-level governance and policy and practice transfer blur the boundaries of the penal state and/or suggest the development of a penal sub-states and penal super-states.

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