Penal Culture and Hyperincarceration

The Revival of the Prison

Chris Cunneen, Eileen Baldry, David Brown, Mark Brown, Melanie Schwartz, Alex Steel

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409447290
• eBook ISBN: 9781317082651
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

What are the various forces influencing the role of the prison in late modern societies? What changes have there been in penality and use of the prison over the past 40 years that have led to the re-valorization of the prison? Using penal culture as a conceptual and theoretical vehicle, and Australia as a case study, this book analyses international developments in penality and imprisonment. Authored by some of Australia's leading penal theorists, the book examines the historical and contemporary influences on the use of the prison, with analyses of colonialism, post colonialism, race, and what they term the 'penal/colonial complex,' in the construction of imprisonment rates and on the development of the phenomenon of hyperincarceration. The authors develop penal culture as an explanatory framework for continuity, change and difference in prisons and the nature of contested penal expansionism. The influence of transformative concepts such as 'risk management', 'the therapeutic prison', and 'preventative detention' are explored as aspects of penal culture. Processes of normalization, transmission and reproduction of penal culture are seen throughout the social realm. Comparative, contemporary and historical in its approach, the book provides a new analysis of penality in the 21st century.

Chapter 1
Penal Culture: The Meaning of Imprisonment

Penological theory and research within criminology has been reinvigorated in recent years by the seemingly inexorable rise of prison populations in most Western nations. The terrain of this work has been marked out by important new ideas, such as the ‘new penology’ (Feeley and Simon 1992), ‘culture of control’ (Garland 2001a, 2001b) and ‘new punitiveness’ (Pratt et al. 2005), and more recently by claims about the connection between neoliberalism, penality and hyperincarceration (Wacquant 2009, 2010) and an emergent ‘carceral state’ (Social Research 2007). Underpinning this work has been a veritable drum roll of statistics, first signalled in the US by the arrival at a prison population of 1 million, but then in June 2002 it was recorded that 2 million (mainly young, mostly male, increasingly black and Latino) people were behind bars, and so the counting continued. In the UK, continuing the trend established under Thatcher, New Labour expanded the prison population rapidly during the latter part of the 1990s and 2000s with inmates held in increasingly overcrowded conditions (Sim 2009). Canada had apparently avoided the US/UK trend but since the early 2000s imprisonment rates have also been on the rise there (Prison Justice 2005, Statistics Canada 2012).

In Australia and New Zealand prison populations have been subject to many of the same upward pressures noted in North America and Western Europe, including for example a growing feminisation of the prison population (Sim 2009, Baldry and Cunneen 2012). Like the United States, these changes have involved significant over-representation of particular communities: most notably Indigenous people1 in Australia and Maori in New Zealand. Moreover, jurisdictional variations have also mirrored US patterns, with some places, such as the Northern Territory (NT) and Western Australia (WA), imprisoning at rates amongst the highest in the world, while others, such as Victoria, like the US counterpart Maine, seem almost models of Scandinavian-style restraint. Imprisonment in Australia thus exhibits many of the hallmarks of what has made the US such a crucible for recent work in penology. We discuss Australian and international imprisonment trends in Chapter 3.

This book is focused on identifying changes in penal culture over the last 40 years, which have led to a re-valorisation of imprisonment as a frontline criminal justice strategy. As discussed in more detail below, we use the concept of penal culture to refer to the broad complex of law, policy and practice which frames the use of imprisonment, and to the broad system of meanings, beliefs, ideas and symbols through which people understand and make sense of the prison. The focus of our analysis of penal culture is Australia and its states and territories, although we place this analysis within a broader international context.

At times, our discussion draws on American literature on penality and penal culture. It is true that American imprisonment rates dwarf those of Australia and elsewhere. Tonry and others argue that the US penal phenomenon is ‘distinctly American’, arising ‘partly from American moralism and partly from structural characteristics of American government that provide little insulation from emotions generated by moral panics and longterm cycles of tolerance and intolerance’ (Tonry 1999: 419; see also Pratt 2011).

While American exceptionalism in this arena makes direct comparisons of limited value, the US experience remains highly valuable in any discussion of penal culture. Wacquant has suggested that US penal severity is a pattern that has to some extent been replicated across the Western world, and is thus a relevant point of focus as the core from which the abiding (Western) penal paradigm is diffused. It is not necessary to fully accept this view (Pratt 2011) to find value in the discussion of the US penal experience. The USA is a useful case study of the relationships between penal cultures and resulting trends in incarceration rates, and provides insight into the outcomes that can be expected when punitive trends are pushed further than in other comparable Western liberal democracies.

We take as a starting point that imprisonment rates are not simply a function of increased levels of crime. Wilkinson and Pickett (2009: 147) note that only 12 per cent of the growth in the state prison population in the USA during the 1980s and 1990s could be associated with increases in criminal offending – the rest was the result of increased use of imprisonment and longer periods of imprisonment. Similarly a comparison between the UK and the Netherlands showed that two-thirds of the difference in the higher UK imprisonment rates was a result of the greater use of custodial penalties rather than differences in crime rates. As we discuss in more detail in Chapter 3, in Australia increases in imprisonment rates have continued, while crime rates have levelled or fallen in many categories of crime.

Further, there are often contradictory movements within some states, even high imprisoning ones: WA, for example, has maintained a ‘three strikes’ law relating to property offences while simultaneously abolishing short prison sentences of six months or less. A number of factors appear to have contributed to the increased use of imprisonment, including changes in sentencing law and practice, restrictions on judicial discretion, changes to bail eligibility, changes in administrative procedures and practices, changes in parole and post-release surveillance and a public perception of the need for ‘tougher’ penalties. This is all occurring in an environment of constantly changing criminal law. In Australia between 1 January 2003 and 31 July 2006 there were over 230 major changes to law and order legislation in Australian states and territories (Roth 2006). A comparable story can be found in the UK where in 10 years the Blair government passed 53 crime Acts creating 3,000 new offences (Dean 2008: 16). As Jenkins (2012) points out, this was compared with ‘500 in the equivalent period under the Tories. He [Blair] packed the courts, bust legal aid and put more people in prison than ever in British history.’ Our analysis of bail and sentencing legislation shows constant and dramatic changes to criminal law in recent years, often as a result of an individual high profile case.

Quantitative studies have not adequately explained the complexity of change in the prison population. Partly, this limitation is technical in nature, since crime rates and imprisonment rates may influence each other reciprocally. Yet even sophisticated statistical modelling addressing why imprisonment rates vary so widely from place to place have failed to show any simple mechanical relationship between crime and punishment (Nagin 1998). In Australia, there is an often noted differential in imprisonment rates between the demographically similar states of New South Wales (NSW) and Victoria, with the former showing twice the imprisonment rate of the later state. Gallagher (1995), for instance, concluded that a combination of higher flows into prison and longer terms of imprisonment accounted for the higher NSW rate, yet a paucity of sufficiently detailed and comparable quantitative data on crime rates, crime seriousness and the like meant that the reasons for this greater breadth and intensity in use of the prison remained unexplained (although see Freiberg and Ross 1999). This has led a number of criminologists to suggest that some aspects of the wider penal culture of the two jurisdictions must play a role. In fact, this sort of explanation is consonant with the conclusions of two major studies of custodial remand in Victoria, South Australia (SA) and WA (Bamford, King and Sarre 1999; Sarre, King and Bamford 2006). In both studies a complex of social, cultural and decision-making factors, in interaction with frameworks of legislation that were either permissive or restrictive of bail, accounted for the marked cross-jurisdictional differences. In the post-release context, Baldry et al. (2006) suggest that social exclusion and support factors need to be taken into account when explaining differing re-imprisonment rates.

At a more theoretical level, recent international literature and research pose a number of explanations for the growth in imprisonment rates over recent decades (D. Brown 2005). It has been suggested that many Western democracies are entering a period of ‘mass imprisonment’ (Garland 2001a). This change represents a reversal of earlier trends where prison rates had been relatively stable or increasing only slowly during most of the twentieth century. According to many commentators the rise of mass imprisonment is consistent with the broader political agenda of the neoliberal state (O’Malley 1999; Wacquant 2009), a move away from rehabilitative aims (Garland 2001b) and an increased reliance on risk assessment (Mark Brown and Pratt 2000). We have chosen the period from the 1970s to fully capture this transformation in penality. Indeed one of our tasks is to identify when and how in the period from the 1970s, ideas, practices and sensibilities developed which have allowed for the re-valorisation of the prison. We also note that as a general rule we have adopted Wacquant’s (2010) notion of ‘hyperincarceration’ rather than ‘mass imprisonment’. We note that Garland has argued that mass imprisonment needs to be defined in the context of the social concentration of imprisonment’s effects (Garland 2001a: 1–2), and both Garland and Wacquant refer in the US to the concentration of imprisonment among young black men. For us, however, the term ‘mass imprisonment’ can imply an undifferentiated increase in imprisonment and the term is often used in this generalised manner. In contrast, the concept of hyperincarceration captures more clearly the idea that increased imprisonment has been targeted at particular racialised groups (in the Australian context, Indigenous people) and others marginalised into a liminal existence between prison and community, including people with mental health disorders and drug and alcohol addictions.

Approaching Penal Culture

An understanding of penal culture allows us to explore what Garland (1991) refers to as the public ‘sensibilities’ that underpin the penal values of a particular society. Young and Brown have noted that ‘while punishments may be justified by policymakers, judges and penal administrators by reference to their instrumental goals (which tend to be similar across jurisdictions), their form and severity are in reality likely to be chosen on the basis of almost instinctive feelings about what the right punishment is’ (1993: 40–41). A key goal of our work is to develop and theoretically expand the notion of penal culture: a number of writers draw upon the term, yet few do so reflexively, tending instead to regard it as a self-explanatory notion (see Garland 1991; Franko Aas 2004; Tonry 2004; Pratt 1998).

We begin by acknowledging that there are two complex and contested concepts in play when we speak of ‘penal culture’. Our understanding of these two concepts and their meaning when linked together goes to the core of the argument presented in this book: an understanding of penal culture is necessary to explain the developments in imprisonment in Australia over the last 40 years. The concept of penal culture is the explanatory principle around which this book is organised. Therefore it is worthwhile spending some time unpacking how we understand these two interlinking terms.

We use the notion of ‘penal’ in the context of a wider concept of penality, which refers to the broad field of institutions, practices, discourses and social relations which surround the ideas and practices of punishment. The concept of penality implies an understanding of punishment that is social, historical and political. It is a view that sees punishment as far more than a calculative task by sentencers or a technical apparatus administered by experts. Similarly penality implies a study of punishment that extends beyond the effects on a discrete offender. It is concerned with the social meaning and cultural significance of punishment, of its broader social, political and economic effects. The phenomenon of punishment exists across different institutions and the penal realm is not seen as ‘a singular, coherent unit’ (Garland and Young 1983: 15). There is a variety of often contradictory and competing discourses on punishment including judicial decisions, parliamentary reports, commissions of inquiry, media and popular culture depictions, government policy, academic research and prisoner activist voices. The concept of penality allows us to approach this broader, complex and multidimensional realm of punishment, and understand the connections to legal, social, political and economic policy, while seeing the influence that these social and political institutions simultaneously have on punishment.

The concept of culture is more difficult to define than penality. It is more widely used in both everyday language and in academic discourse. It is used as an analytical concept or tool (referring to meaning through symbols, language and other signifiers), and as a description (referring for example to prison culture or youth culture). Raymond Williams refers to culture as one of the most complicated words in the English language, due partly to its complex historical development and its diverse application and conceptualisation within a wide range of disciplines (see Delaney 2004: 11; also Larmour 2008: 227).

Williams (1983) distinguished three broad meanings of culture:

• the idea of civilisation and its intellectual, spiritual and aesthetic development;

• culture as a way of life peculiar to a social group: its material and practical characteristics, and its signifying and symbolic aspects;

• and a narrower definition encompassing the arts and intellectual pursuits (see Eagleton 2000: 9–16; Larmour 2008: 227).

It is the second meaning, the concept of culture as a way of life – the collected ideas and habits learned, shared and transmitted between generations – that has underpinned the discipline of anthropology and seeped into other disciplines, especially sociology, through the mid to late twentieth century, notwithstanding ongoing conceptual development, confusion and debate (Bauman 1999).

Certainly the concept of culture and its use have been debated both within criminology and more broadly. We are aware of some of the inherent pitfalls: the concept can be misused as a fall-back position to account for the unaccountable (‘an uncaused cause’); as an ‘explanation of last resort’, or as a ‘veto on comparison’ (Wedeen 2002: 714; Larmour 2008: 228). Culture can be conceptualised so broadly as to render it meaningless, or so narrowly as to limit its theoretical validity. There is a danger that the concept is ‘torn between an empty universalism and a blind particularism’ (Eagleton 2000: 44).

One attempt to overcome these problems has been to draw a distinction between the use of the plural form of ‘cultures’, which describe ‘concrete and bounded worlds of beliefs and practices’, and the singular concept of ‘culture’ denoting a ‘semiotics of social life’ (Sewell 2004: 202). The conceptualisation of culture as semiotic practices entails seeing culture as the processes of meaning-making. It is an analytical tool for understanding the relationship between people’s practices and their ‘systems of signification’, that is their language and other symbolic systems (Wedeen 2002: 713, 723).

Wedeen argues that culture as semiotic practices operates on two levels: firstly referring to ‘what language and symbols do – how they are inscribed in concrete actions and how they operate to produce observable … effects’; and secondly offering a lens, focusing attention on how and why phenomena are invested with meaning (Wedeen 2002: 714). This cultural analytic framework is clearly tied to Geertz’s notion of culture:

The concept of culture I espouse is essentially a semiotic one. Believing with Max Weber, that man [sic] is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning. (Geertz 1973: 5)

We see explanation, rather than simply description, as our primary criminological task. Therefore, it is necessary to look at the processes and mechanisms which translate culture into 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’ (Garland 2006: 438).

As Geertz and more recently Garland have noted, this preoccupation with explanatory mechanisms is distinctly Weberian. Weber (2009) in The Protestant Work Ethic and The Spirit of Capitalism is not just trying to describe a shift in the material and spiritual re-organisation of Western Europe, but rather to explain those changes. For instance, he describes how certain values – like frugality and hard work – gave rise to the emergence of modern capitalist relations. These values had religious underwriting but they exerted causal force on the material structures of society. Weber provides a cultural account, but it is also explanatory. This is the challenge posed by Garland (2006) and adopted in the current project – a cultural account of the Australian penal system, which is situated within the broader social, economic and political structures of society and ultimately carries explanatory force.

Garland and Penal Culture

Garland (1991, 2001b, 2006) has provided the most systematic use of the concept of culture in relation to punishment. For Garland, punishment is a cultural artefact, which embodies and expresses society’s cultural forms (1991: 193). He uses a wide definition of culture, which covers both ‘mentalities’ and ‘sensibilities’. By using the concept of ‘mentalities’, he is referring to ‘intellectual systems’ and ‘forms of consciousness’; and by sensibilities, he refers to structures of affect and emotion. Socially constructed sensibilities and mentalities form the cultural patterns that influence how and why we punish and structure the way we ‘feel’ about offenders and their punishment. Mentalities provide an intellectual framework, which explain and justify why and how we use certain things as punishment (for example assess, classify, segregate, train). Cultural sensibilities rule in some forms of punishment as ‘appropriate’ and rule out others as ‘unthinkable’ (for example, as cruel, barbaric, repugnant).

In his later work Garland points out that culture is both a theoretical concept and an object of analysis (2006: 420). He identifies two distinct senses in which culture is used. These can be understood as:

• Analysis of culture as a ‘collective entity’, which is similar to the same way comparative anthropology might look at different social groupings (for example, this culture compared to that culture).

• Cultural analysis, which includes the analysis of those aspects of social relations which are distinctly ‘cultural’ such as ideas, symbols, values, meanings, sentiments.

Both approaches have been used in understanding the relationship between culture and punishment, although Garland argues that the analysis of culture (as an entity) is increasingly problematic largely because of the fluidity that frequently exists between group boundaries and the overlapping and changing nature of social groups and identity. He points out that as a consequence of globalisation there are also now much less pronounced contrasts between cultural groupings (2006: 430). Having said that, writers like Melossi (2001) and Pratt (2008a, 2008b) demonstrate that there is value in comparing national penal approaches, which are least partly informed by an analysis of cultural difference.

The difficulties of the second strand – cultural analysis – relate to the problem of defining and separating out the cultural from the rest of the analysis (i.e. the historical, political, economic and social analysis). Garland points to the near impossibility of distinguishing the ‘cultural’ from the ‘penal control’ aspects of imprisonment. However, the basic distinction between analysis of culture and cultural analysis does not have to operate as a typology. In fact...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• Acknowledgments
• Table of Cases
• Table of Legislation and International Conventions
• List of Interview Codes
• 1 Penal Culture: The Meaning of Imprisonment
• 2 Global Convictism and the Postcolonial
• 3 Parliaments, Courts and Imprisonment Rates
• 4 Correctional Paradigms: The Rise of Risk
• 5 Suitable Enemies: Penal Subjects
• 6 Reinvigorating the Prison: New Perspectives on Containment
• 7 Penal Culture: Transmission, Normalisation and Reproduction
• 8 Winding Back Mass Imprisonment?
• 9 Manifestations of Contemporary Penal Culture
• Bibliography
• Index