Politics & Law

Penal trends: Strange weather or climate change?

Jonathan Simon

The most important political storm in recent history (was it the storm or the meme?), “Super-Storm Sandy” helped not only President Obama but to re-raise the question of whether unusual weather is a sign of profound climate change, in this case global average temperature rises caused by human carbon effects.

When it comes to our massive penal state, recent events have raised a similar question. Are recent changes in prison-growth patterns, judicial decisions, and electoral results variations within the norm, or evidence of a more profound change that could mark the end of our forty year experiment with mass incarceration?

I’m struck by an analogy that Philip Smith makes in his great contribution to the Sage Handbook of Punishment and Society (edited by Richard Sparks and myself; as a handbook its a wee pricey, but put it on your holiday wish list or appeal to your local library to order it). In his chapter on cultural analysis of punishment, “Punishment and Meaning: The Cultural Sociological Approac,” Smith suggests that many of the classical sociological theories of punishment “do a great job of explaining the long-term penal climate,” but are poor at making sense of local and short-term variation. Foucault’s account of disciplinary society, for example, makes great sense of the emergence of the cellular prison as a dominant mode of punishment, but can it help us understand California’s Three-Strikes law, or declining public support for capital punishment in California?

Smith argues persuasively that we need the tools of cultural sociology to make sense of the short-term and local and to connect them to the broader more structural features of penality. But the question that we face at the moment is whether the local and possibly short-term penal events we are seeing represent a spurt of unusual weather within a stable penal climate, or are we witnessing climate change?

Our friends Ian Loader and Richard Sparks lend us a more specific climate metaphor in their 2010 book Public Criminology? — suggesting that the penal climate (globally? or at least in the North?) has gotten decidedly hotter due to the politicization of crime policy. Are these recent events in California signals of cooling in one of the hottest penal states in the world, or just a spate of moderation in a longterm trend toward extreme penal heat?

So what events do we have in mind?

  1. The drop in California’s (and the U.S.) prison population in both absolute and relative to population terms since 2010
  2. The Supreme Court’s stunningly strong (although nail bitingly close) decision in Brown v. Plata, requiring California to impose structural restraints on its prison population and implying that the human dignity retained by prisoners may present a broad protection against penal excess.
  3. The results of the November 2012 election in California, which saw voters overwhelmingly adopt a moderation of California’s notoriously excessive 3-Strikes law, narrowly defeat a death penalty repeal (which would have been a global first if it had passed), and perhaps most importantly, comfortably adopt a tax increase (albeit temporary and regressive in many respects).

As a student of punishment and society, I’ve contributed to the view that California, and the U.S. generally, have experienced a penal climate change, beginning in the 1970s, that have produced mass incarceration and the culture of fear that locks down others in gated communities and sterile office parks. Like others (Loic Wacquant, David Garland, Nicola Lacey, Bernard Harcourt),  I have thought about this penal climate shift as broadly related to what may or may not be well labelled “neo-liberalism” — the very clear shift in political-economy from state-centered and protectionist toward market-centered and unregulated (each account provides a very different analysis of how these political-economic changes mediate penal policies). Was the financial crisis of 2008 the beginning of the end of “neo-liberalism”? Is Obamacare really the beginning of a new phase of strong regulatory and welfare-state development?  I’d love to think so personally, but I’m skeptical.

Instead, the relationship between “neo-liberalism” and the hot penal climate may be far looser than implied by some of the sociological accounts. Building “neo-liberalism” in the California and the U. S. in the 1980s and 1990s may have been facilitated by building and filling prison, but that does not mean the two must remain aligned.

It is a sad fact of penal history (see my own chapter in the Handbook) that penal practices fail regularly and at times spectacularly. Rising political alignments often find it extremely helpful to criticize the penal status quo. But after 40 years the penal status quo is now associated with that alignment, in such instances, the alignment stays and penal policies change, sometimes in profound ways (as in the transformations in penalty that marked the rise of working-class voters at the beginning of the 20th century, see David Garland’s Punishment and Welfare). Mass incarceration has failed, spectacularly in the form of overcrowding, humanitarian medical failure, and a mounting chronic-illness crisis.

All of these were in central display in the Supreme Court’s Brown v. Plata decision.  In my forthcoming book Mass Incarceration on Trial (sorry if you pre-ordered, its delayed due to my editing but coming out next Fall), I try to unpack what that decision teaches us about changes in the social meaning of incarceration, and about how we can further those changes to make sure short-term and local weather variation moves toward penal climate change, and cooling in particular

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

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