Punishment and Welfare: A History of Penal Strategies

Punishment and Welfare

Punishment and Welfare

A History of Penal Strategies

by

DAVID GARLAND

qp

Quid Pro Books

New Orleans, Louisiana

Smashwords edition. Copyright © 1985, 2018 by David Garland. All rights reserved. Not to be copied, reproduced, digitized, or transmitted in any manner—in whole or in part, except for brief excerpts in reviews by the public press—without the prior written permission of the present publisher, Quid Pro Books.

Previously published in 1985 in hardcover edition, and 1987 in paperback edition, by Ashgate Publishing Company, Aldershot, England and Burlington, Vermont.

Published in 2018 by Quid Pro Books (at Smashwords), in the series Classics of Law & Society.

Original artwork used on this edition’s cover copyright © by Katja Hess, www.katjahess.com, used by permission and with the sincere thanks of the author and publisher.

ISBN 978‐1‐61027‐378‐7 (ePUB)

ISBN 978‐1‐61027‐379‐4 (paperback)

QUID PRO BOOKS

Quid Pro, LLC

5860 Citrus Blvd., Suite D‐101

New Orleans, Louisiana 70123

www.quidprobooks.com

qp

Publisher’s Cataloging in Publication

Garland, David

       Punishment and welfare: a history of penal strategies / David Garland.

                p.  cm. — (Classics of law & society)

       Previously published: Aldershot, UK and Burlington, Vt.: Ashgate, 1985.

       Includes bibliographical references and index.

1. Punishment—Great Britain. 2. Criminal justice, Administration of—Great Britain. 3. Great Britain—Social policy. 4. Punishment—Great Britain—History. I. Title. II. Series.

HV9646.G37 2018

To my mother and father

Contents

Preface, 2017

Acknowledgements

Preface, 1985

Part I: Patterns of Punishment

1.

Old and New Penal Strategies

2.

Punishment and Social Regulation in Victorian Britain

Part II: Programmes of Reform

3.

Criminological Science and Penal Politics

4.

Social Work and Penal Reform

5.

Social Security and Eugenics

Part III: The Penal-Welfare Complex

6.

Resistances, Manoeuvres and Representations

7.

The Process of Strategy Formation

8.

Penal Strategies in a Welfare State

Appendices

Bibliography

Index

Preface ● 2017

Punishment and Welfare was researched and written in the late 1970s and early 1980s at a historical moment very different from today. These were the closing years of the post-war era – a thirty-year period of growth and diminishing inequality brought about by social democracy, managed capitalism, and an expanding welfare state. Many of us who came of age in this exceptional phase of capitalist development were prone to assume that these settled trends were bound to continue, with the expansive, empowering, inclusionary forces of mass democracy pressing towards greater equality and enhanced social justice. But already the ground was beginning to shift. The 1970s had been a decade of oil crises, runaway inflation, high unemployment, the ‘end of growth’ and complaints that the nation was becoming ‘ungovernable’. Serious doubts were already being expressed about the viability of corporatist agreements and Keynesian formulas and rightwing critics pointed to the welfare state, the trade unions, and ‘socialist’ politics as the causes of the growing economic malaise and sense of national decline. May 1979 saw the election of Mrs. Thatcher, though it would be several years before her administration developed a distinctive ideology and committed itself to the free market fundamentalism and public sector dismantling that would be her long-term legacy.

We know now that this historical moment was a turning point leading to the social and economic world that we presently inhabit: a world of resurgent capital, reduced working class power, free market policies, and welfare state retrenchment. But at the start of the 1980s, the balance of power between social democracy and its opponents appeared much closer. Thatcherism, privatization, the attack on organized labour, the culture of control, neoliberal policy prescriptions – all of these were just beginning to take shape. The future seemed much more open then than it does in retrospect.

It is true that far-sighted observers such as Stuart Hall were already warning about the ‘drift into a law and order society’ (Cobden Trust lecture 1980) and the possibility that the crisis might give rise to a more authoritarian politics, but many still believed that contemporary struggles might result in a renewed social democracy – perhaps even a democratic socialism – that would be more open, more egalitarian, and more effective in taming capitalism than the welfare state and mixed economy that had emerged out of post-war reconstruction.

At the same moment, though for rather different reasons, Britain’s penal institutions (and their equivalents in the US and elsewhere) were being assailed by forceful criticism of their underlying philosophy and recurring complaints about their ineffectiveness and injustice. Like the welfare state project of which it formed a part, the forward march of penal progress abruptly stalled and its future seemed uncertain.

After the best part of a century during which ‘progressive penology’ and ‘penal reform’ had become synonymous with what Francis Allen called ‘the rehabilitative ideal’, academics and practitioners began to entertain serious doubts about its value. And though some of the old guard pushed back against the critics, insisting that reformative penal institutions were a mark of moral decency and a civilized society, the most common response was a retreat into doubt and ambivalence. Liberal elites and penological experts continued to value social justice, prisoner welfare, and a reformative penology, but they found it impossible to deny the practical problems of actually-existing correctionalism, or to discount the principled objections that the penal system increasingly attracted. Practices that had long appeared positive and progressive – such as indeterminate sentencing, the individualization of punishment, juvenile courts, or correctional treatment – now came to be viewed as illiberal, paternalistic, and prone to bias and arbitrariness. And since the promised crime-reduction effects of this approach had failed to materialize, supporters found it difficult to mount a defense. By the early 1980s we had entered a transitional moment in which academics and practitioners were struggling to figure out a principled approach to punishment and the power relations that underpinned it.

Punishment and Welfare set out to diagnose the sources of this ambivalence. It aimed to develop an in-depth analysis of ‘correctional’ criminal justice and the contradictory logics, values and assumptions inscribed within it – an undertaking that would, I hoped, allow me to resolve some of the confusion and misunderstandings that characterized contemporary debates. But rather than undertake a philosophical analysis of penological ideas, I approached the problem by means of a historical investigation, asking how the laws, practices, and institutions of punishment had come to be structured in their modern forms and examining the deliberative, often contentious processes out of which our modern assumptions about the offender, the criminal act, and the reformative penal state had emerged. The aim, in short, was to follow Michel Foucault’s lead and write a history of the present, uncovering the political and ideological struggles that lay at the root of modern penal practice.

The book’s project was shaped, quite explicitly, by the political and penological conjuncture in which it was launched. Its aim was to uncover the power relations and ideological frames that were inscribed in modern penal policy; to show how the discourses and practices of Britain’s penal institutions had been forged in now-forgotten political struggles at the start of the twentieth century; and to demonstrate how the specific compromises and contradictions generated by these struggles – and not the supposed illiberalism of welfare or the impossibility of reform – had worked to undermine the reformative potential of penal treatment while simultaneously strengthening its individualizing controls and class bias.

The project assumed that an analysis of the modern penal system at the moment of its emergence would enable us to see more clearly how its discourses and practices were shaped by specific struggles, thereby recovering the politics and the power relations that the passage of time and the work of ideology had long since concealed. Punishment and Welfare should thus be read as a critical genealogy – a historical inquiry focused not on penal policy but on penal strategy; an anatomy of social control and class discipline disguised as penal reform. Its focus is on a historical time and place – Britain between 1890 and 1914 – when the power to punish came to be instituted as an element of welfare state government.

If Punishment and Welfare was shaped by the political conjuncture out of which it emerged, it was also, and more directly, influenced by the sociological and historical literature that existed at that time. As compared to today when ‘punishment and society’ is a prominent and popular field of study, in the early 1980s the sociology of punishment was just beginning to emerge as a distinct academic specialism. Historical studies had done much to shape the research agenda, with works by Rusche and Kirchheimer (1969), Hay (1975), Ignatieff (1978), Fine et al. (1979), and Melossi and Pavarini (1981) developing a neo-Marxist analysis of penal history and Foucault’s Discipline and Punish (1977) opening up a new and more detailed understanding of the power to punish. In most of these studies, the emphasis was on the class struggles that structured penal policy, the social control functions of penal law, and the role of penal institutions in reproducing ruling class hegemony and capitalist structures. Ideas and culture were downplayed as sources of penal practice, and material interests, power relations, and ideological processes were very much to the fore. Whig histories of penal progress were out: anatomies of penal power were in.

As the new sociology of punishment split off from penology and penal philosophy it addressed itself to two fundamental questions – the relationship between punishment and social structure and the causes of penal change – and it did so chiefly by analyzing the birth of the modern prison and its relationship to the economic and social structures of modern society. For certain writers, this was a reprise, in the penal realm, of the classic Marxist questions about the relationship of ‘base’ to ‘superstructure’ and of the historical processes that secured the dominance of the capitalist mode of production. And out of this Marxist problematic there emerged some brilliant analyses – most notably by Douglas Hay and E.P. Thompson – of the role of criminal law, penal rituals, and legal ideologies in the formation of a bourgeois state and the reproduction of capitalist rule. In the context of this intellectual culture, Foucault’s intervention was both an extension of existing themes (e.g. the background assumption in Discipline and Punish that the rise of the disciplines and techniques for the moralization of workers were linked to the emergence of capitalism) and an opening up of new questions – about the relation of knowledge to power; about the importance of the human sciences in shaping and legitimating punishment; and about the relationship of penal technologies to broader modes of exercising power and subjugating individuals. Not the least of its innovations was to pose the question of how the science of ‘criminology’ was linked to the modern prison and associated forms of ‘knowledge-power’.

* * * * *

If the focus of prior work had been the emergence of the prison and modern criminal law in the early nineteenth century, the focus of Punishment and Welfare was on the penal and social transformations of a century later when the institutional foundations of the modern welfare state were put in place. The question that originally motivated the inquiry was a Marxist one: how did the economic conjuncture and class struggles that produced the welfare state affect criminal law and criminal punishment? How did the shift from nineteenth century liberal capitalism to twentieth century monopoly capitalism restructure the principles and practices of criminal punishment – if not directly, then via the emergence of new class relations, new state responsibilities, and new ideologies of corporate inclusion and citizenship? The basic premise of the study – supported by an observed temporal correlation between patterns of penal and social law reform in the first decade of the twentieth century – was that the new institutions of welfare government (social insurance, social work, state-sponsored social control, etc.) had reshaped the work of the penal system, its ideas and its practices. The question was: how exactly had this structural effect been achieved?

From the beginning, this was a study of structural transformation. But as the research progressed, the focus moved away from the mode of production and the penal consequences of its alterations to a more concrete analysis of shifts in punishment and the changing rationalities and power-knowledge relations that this shift entailed. This change of focus did not register a change of theoretical loyalties on my part: it was instead an accommodation to the archival material I was studying. Criminological discourses, criminal legislation, committee reports, official descriptions of penal practice, institutional reforms – none of these bore a direct relationship to mutations in capitalism, but they often had clear affinities with concepts such as discipline, normalization, knowledge-power, and subjectification. In this empirical inquiry, Foucauldian concepts simply gained more traction.

From the beginning, too, the study’s scope was wider than that of conventional penal history. Being concerned with the state, ideology and class control, it became a study of two historical systems of regulation – the Victorian and the Modern – each of which included not just penal institutions but also the loosely-coupled institutions of charity, welfare, and employment that played a role in the day-to-day governance of working people and the disciplining of the poor.

Punishment and Welfare starts from an account of British penality in the mid-Victorian era that traces the links between the details of penal practice and the broader structures of social and economic relations. It describes how the penal system deemed the offender to be a free, equal, responsible legal subject; the insistent individualism of the prison’s reliance on cellular isolation; the work-ethic ideology conveyed by its regime of unproductive prison labour; the absence of state aid for offenders; and the operative conception of punishment as a social contract response to an individual who freely chooses to break the law. The parallels between these penological principles and the political ideology of laissez-faire individualism; their affinity with related conceptions of a minimalist state; the deterrent, less eligible, policies that characterized the workhouse as well as the prison – all of these are presented as evidence that Victorian penality was structured by the institutional patterns of liberal, market society. These parallels suggest an elective affinity – an ideological and structural fit – linking penality into the circuits of the dominant ideology and the prevailing structure of class relations. The penological conceptions and prison regimes of the 1870s and 1880s were, in effect, part of a network of strategic links and structural homologies that rendered Victorian penality congruent with the class relations, political ideologies and social policies of the time.

The transition from this Victorian mode of penality to the modern penal-welfare arrangements that emerged after 1895 is presented as a complex historical process in which competing (and sometimes converging) reform movements and interest groups played a part. Proponents of a new scientific criminology, advocates of eugenics and social insurance, social workers, charity organizers, penal administrators, and New Liberal political reformers all contributed to the debates of these years, and much of the book is taken up with descriptions of the interaction between reform programme advocates and the existing law and policy, and with the various conflicts and alliances that these produced.

However, these penal developments did not occur in isolation. Their intellectual forms, ideological concerns, and political ambitions were part of a wider restructuring movement that reorganized British social, political, and economic institutions and constructed the social insurance state of the Edwardian period – a state that would, over the next thirty years, and the bracing impact of World War II, develop into the Beveridge-Attlee welfare state.

One could trace this penological movement to the economic and political changes that Marxists describe as the transition from liberal to monopoly capitalism – and at times the book points to this connection. But the important issue is less one of causal priority than of causal interconnection. Economic changes had political and ideological corollaries, and vice versa, and developments in social and penal policy were deeply embroiled in these transformations. Questions of criminal law and penal policy – for example, the culpability of offenders, the limits of criminal responsibility, the responsibilities of the state in respect to the reform of offenders or aid to ex-prisoners, the design of institutional regimes for correction or control – were intimately linked to other issues of social policy, such as the administration of workhouses or the organization of the Poor Law. And these in turn raised broader issues about the regulation of the labour market, the proper role of the state, and the strategy to be adopted towards the care and control of the poor.

The intersection of penal, social and economic issues, and the conscious recognition on the part of policymakers that they were in fact related, is well evidenced in the official reports and recommendations published between 1895 and 1914 – reports in which distinctively novel ways of thinking and acting were applied to a whole range of otherwise separate penal and social problems. And these new social and penal rationalities were operationalised when a new set of penal-welfare institutions was eventually established, premised on a new set of principles and ideological commitments that marked it off from the liberalism of the nineteenth century and linked it to the emerging mode of government that came to be known as the Welfare State. Modern penality’s positive approach to the reform of offenders; its extensive use of interventionist agencies; its deployment of social work and psychiatric expertise; its concern to regulate, manage and normalise rather than immediately to punish; and of course its ‘welfarist’ self-representations – all of these combined to link the new penality with the broader control strategies, ideological forms, and class relations that emerged at this moment.

So Punishment and Welfare describes a structural transformation in patterns of penal and social control, identifying new forms of power-knowledge and connecting them to changing class relations and material conditions. In these respects, the book remains true to its Marxist and Foucauldian provenance. But the thesis that the book develops departs in some important respects from these intellectual origins, not least in its denial of any base/superstructure determinism and its insistence that discursive transformations come about in and through the actions of agents whose motivations can be inferred and whose struggles can be documented.

The theoretical claim of Punishment and Welfare is not that economic structures determine penal outcomes but rather that penal outcomes are consciously negotiated within the limits that economic, political, and ideological structures impose. And these structures do not work all by themselves, somehow controlling outcomes with an unseen hand or by automatic means. Instead it is a matter of situated, problem-solving, decision-making agents – in this case reformers, administrators, policymakers and politicians – who consciously perceive the bounds of political possibility and adjust their actions accordingly, sometimes struggling to change the rules of the game, more often making compromises with the constraints they face.

The assumption is that structures are made effective – and either reproduced or made to change – through the medium of human action, with all of the struggles and contested outcomes that reformative action generally entails. Instead of supposing that penal forms are ‘determined’ by a particular mode of production or by a particular pattern of class relations, the book assumes that penal forms are produced by conjunctural politics and by specific struggles within the sphere of penality itself. The wider structures of economy, law and ideology – as well as the institutional grid of social policies – generate pressures towards specific kinds of penal practice, and limit the range of possible reforms. But in the end, penal and social practices are constructed by the actors and agencies most closely involved, which is why, for all its concern with social and economic structures, Punishment and Welfare foregrounds the analysis of programmatic discourse and reformative action.

The book’s approach is, for this reason, resolutely concrete and empirical. Its archive consists of documents, texts, and discourse drawn from the world of social science, penal reform, and government action and situated within a broader account of social change derived from prior scholarship. It focuses less on individual texts than on the reform programmes that they collectively constituted (with all their variants and internal disagreements), and it views these programmes not as simple scientific statements but instead as complex rhetorical acts. The proponents of these reform programmes argued amongst themselves and took up varying positions, some more logically or scientifically sound and others more pragmatically realistic. But they all sought to advance their ideas, to persuade policymakers and to find favour with officials and law-makers, and much of the book focuses on the transformative processes that these efforts entailed.

The result is a close analysis of discursive manoeuvers, rhetorical figures, and compromise formations, as they were constructed in a reform process bounded by institutional and ideological structures. The details of these contestations have mostly been long since forgotten, but their significance is more than merely ‘historical’ to the extent that they gave rise to discursive and practical outcomes that survived until very recently. To the extent that the outcomes of these struggles formed the historical a priori – the unstated conditions of existence – underlying the penal-welfare system’s power relations and structures of control, they are precisely what genealogical inquiry sets out to reveal.

David Garland     

New York City

November 2017

Acknowledgements

I wish to thank my colleagues at Edinburgh University for their help and advice in the preparation of this work, especially Peter Young, Derick McClintock and Lydia Lawson. I am also grateful to Tony Bottoms and Lindsay Paterson who read the manuscript and offered valuable suggestions.

The editors of The British Journal of Criminology and of The International Journal of the Sociology of Law have kindly allowed material first published in these journals to be reproduced here in Chapters 3 and 6 respectively.

Finally, I wish to extend my warm thanks to my friend and sometime colleague Malcolm Feeley and to Alan Childress of Quid Pro Books for proposing and producing the 2018 edition; to Lee Scheingold and Lillian Grinnell for their careful editing and re-working of the original 1985 text; and to all of the many scholars who have, in recent years, deepened our understanding of the relations between punishment and welfare.

Preface ● 1985

Contemporary attitudes towards ‘welfare’ are marked by a profound ambivalence. The experience of the British Welfare State has revealed the deep problems of such a society, as well as its undoubted promise, to the extent that any defence of ‘welfarism’ must now be qualified, and the ideals which lie behind it are often seen as suspect.

This ambivalence is particularly pronounced where welfare ideologies and objectives have been merged with an apparatus of control – as in the British penal system. Attitudes towards those penal-welfare institutions which seek to ‘rehabilitate’ offenders, or in some way to further their welfare, have vacillated and changed over the last few decades, and there are few topics in contemporary social policy which evoke such mixed feelings and contradictory concerns.

These contradictory positions are not without foundation. Rather they mirror the contradictory nature of the Welfare State and of the welfare sanctions which underpin it. And unless we would opt for a welfare-less system of ‘just deserts’, or else an unrestricted system of state paternalism, it will be necessary to come to terms with these contradictions, to understand them in their complexity, and to assess what can be done to reformulate their elements so as to change their effects.

The underlying purpose of this book is to clarify some of these issues by a detailed examination of the political meaning and significance of welfare strategies as they operate in the penal realm and in the more general social sphere. It is not a political text, in the sense of one which addresses policy questions, formulates new objectives and prescribes methods for their achievement. It is rather a work of critical analysis which aims to provide a framework within which these questions can be better understood and perhaps more adequately addressed. Its hope is that it can aid the formulation of a more progressive and viable politics in this area, though the enormity of this task is not in doubt.

The analysis poses two major questions, one historical and the other sociological. The first asks: how is penal change possible, and how does it come about? The second asks: what is the relationship which holds between punishment and social structure or, rather, between forms of penality¹ and the forms of social organisation within which they operate. It sets about answering these questions – and a number of subsidiary ones, such as the relation of theory to practice, and of knowledge to power – by reference to a concrete historical ‘event’, namely, the transformation of British penality which took place at the beginning of the present century.

This empirical approach is adopted, not through any distrust of theoretical abstraction, but rather out of respect for the limits of such theorisation, and a belief that theoretical work can only proceed pari passu with the development of a detailed and concrete knowledge of the field under study. Consequently, if this enterprise has been at all successful, it will necessarily be a contribution at the theoretical as well as the empirical level of understanding and knowledge.

By choosing to study the transformation of penality which occurred in the early 1900s, I hoped to achieve a number of objectives. First of all, it appeared that a focus upon this historical moment could illuminate the formation and development of penal-welfare strategies, a form of sanctioning and representation which has been of great importance in modern penality, and which is now being put in question. It was hoped that an analysis of this formative period could clarify the political conditions and presuppositions upon which these strategies rest, and allow a deeper understanding of the present crisis in British penal policy.

Secondly, a focus of this kind seemed to allow an investigation of the way in which a new knowledge – namely, the ‘science of criminology’ – infiltrated and influenced the realm of official discourse and practices. It seemed to me that only through a concrete study could the subtlety and complexity of this process be adequately traced and reconstructed. In fact, it soon became clear that criminology was not the only new discourse which informed these penal changes, and that, moreover, the processes whereby theories became practicable were suffused through and through with political and ideological characteristics.

Finally, it was believed that such a study could illuminate the relationship between penality and other social institutions, given that both punishment and various other apparatuses (most notably the poor law) were subjected to transformation in this same period. In the event, the present study has clearly shown the necessity of conceiving penality in its relation to the ‘external’ social institutions which surround and support it. Indeed it will be argued that penal institutions are functionally, historically and ideologically conditioned by numerous other social relations and agencies, which are, in turn, supported and conditioned by the operation of penal institutions. Peter Young and I have argued elsewhere (Garland and Young 1983) that ‘the penal’ and ‘the social’ cannot be conceived of as separate and exclusive realms, since the two are both interpenetrating and interdependent. That theoretical position is substantiated again and again in the pages that follow.

As the book proceeds, it presents a number of different forms of argumentation and methods of analysis. The early sections are historical and comparative, while the central chapters involve the reconstruction of a number of reform programmes and discourses which were operative in this historical process. These discourses, and their relation to historical and institutional developments, are the subjects of the later chapters, which talk, therefore, of the relationships of theory to practice and of knowledge to power. In the course of these chapters, the analysis moves frequently from abstract social analysis of institutions and their functioning, to detailed and often intensive investigation of texts, discourses and knowledges. This movement between levels is rather unusual, but its purpose should become clear as the book proceeds and abstract functional propositions come to be substantiated by detailed analysis of institutional practices and discourses. The problems of how discourses relate to institutions, theory to practice, and knowledge to power, have been posed within the Marxist tradition and in the work of Michel Foucault. So too have the problems of political calculation, the relation of individual agents to political developments, and the problem of how ‘strategies’ can be conceived and understood. This study tries to tackle these general questions in a very concrete way, describing how empirical evidence can be used to further our understanding of these fundamental problems.

Chapter 1 sets up the issues at stake by identifying a radical difference between the forms of penal sanction and representation which were prevalent in the late Victorian period, and those which dominate in the modern era. Having established these differences, their political significance and the period in which this transformation came about, I proceed in Chapter 2 to investigate the conditions which brought about the fact of penal change, and the forms which it adopted. This investigation involves an analysis of the social, political and ideological conditions which underpinned Victorian penality, and the process of their transformation, which began in the 1880s. Having traced the developments which disrupted the logic and functioning of the Victorian institutions, I move on to investigate how the new logics and patterns of modern penality came to be assembled. In Chapters 3, 4 and 5 a number of sources are identified as contributing to this new development, the major ones being the programmes of reform offered by criminology, eugenics, social work and social security.² These reform movements, and the discourses which they mobilised, are reconstructed and analysed in some detail before describing in Chapter 6 their varying fortunes in the face of political and ideological resistance. The final two chapters describe the eventual outcome of these politico-discursive struggles, showing how the will to political power interrupted the logic of theoretical argument to produce the penality (and much of the criminology) which we know today. The book concludes with an analysis of the actual operation of penal-welfare strategies and the extent to which they achieved their penal and political objectives.

Notes

1 The term ‘penality’ is used throughout the present study to refer to the whole of the penal complex, including its sanctions, institutions, discourses and representations. It is useful insofar as it avoids the connotations of the terms ‘penal system’ (which tends to stress institutional practices, not their representation, and to imply a systematicity which is often absent) and ‘punishment’ (which seriously begs the question of the nature of the phenomenon).

2 The term ‘programme’ operates here as an analytical and expositional device, rather than as a real category. It allows us to group together and discuss a large number of projects, schemes and propositions which shared certain fundamental objectives, discursive resources and political positions. This notion of the ‘programme’ needs, of course, to be grounded in the evidence of individual statements of specific projects (see Chapters 3, 4 and 5), but its abstraction allows the broader significance and context of these specifications to be analysed. In consequence, the programmes discussed will be of varying degrees of integrity, uniformity and cohesion, ranging from the tightly-knit eugenics programme to the much more diverse programmes of social work and social security.

In addition, this term allows us to recognise the sense of motivation and purpose which lay behind discourses such as criminology or eugenics, and the institutions which supported them. As will be demonstrated, it was not at all uncommon for these programmatic objectives to find their way into the conceptual structure of the discourse itself.

Punishment and Welfare

PART I

PATTERNS OF

PUNISHMENT

1 Old and New Penal Strategies

Introduction

The general concern of this study is to examine some of the fundamental features of the system of penality that operates in Britain today. In particular it is concerned with the penal-welfare elements of that system – elements which have been strategically and ideologically crucial to penality in its modern form.¹

Such an aim involves something other than a phenomenological description of the sanctioning practices, policy formulation and day-to-day decision-making which take place in modern penal institutions. It requires an exploration of the framework of assumptions, logics and objectives which supports these routine operations and allows them to exist as such. This framework clearly does not exist in the form of an explicit code or set of policy documents, nor does it reside in the theoretical formulations of any one school or any one science. Nevertheless, it will be argued here that the practices of modern penality rest upon a determinate framework of objectives, techniques and discourses, which in turn presupposes a specific field of political forces. A central objective of this work will be to describe this underlying generative structure, along with its political conditions – to show how it operates to fix the contours of the penal complex and to investigate its penal and social significance.

What is this underlying structure? How can we describe this entity which is inscribed in practices and decisions without being anywhere acknowledged, like the grammar of a language which is acted upon, but rarely articulated? Perhaps the most effective way of discerning the characteristics of this framework is to show what the phenomenon is by first of all demonstrating what it is not. A number of such methods are available – for example, the imaginative production of logically possible alternatives as points of contrast, or else a more empirically controlled comparative method which can demonstrate differences with regard to other systems that do in fact exist. The method employed here, however, will be primarily historical. The structure or basic pattern of the modern system will be set in contrast with that which preceded it, thereby allowing a more precise and controlled form of comparability. Moreover, a historical analysis has the advantage of providing the material for an examination of the original programmes, struggles and objectives which lie behind the formation of our present-day institutions and give them their distinctive character.

Of course, the investigation of these historical materials does not necessarily offer an explanation or even a privileged description of the present in terms of its ‘origins’, since these originating projects and their objectives may since have been subjected to change, reconstruction, partial success or downright failure. Nonetheless, the documents and sources which are available to us from the period of transition can produce important information. For example, they can reveal the competing ways in which the ‘penal problem’ was variously formulated; the choices available between different objectives, institutions and techniques; the struggles and concerns which decided these choices, and the wider issues which were seen to be at stake in these calculations and struggles. It is these differences, choices and struggles between the ‘old’ and the ‘new’, between competing alternatives and social forces, which make this moment of transformation and reconstruction an important point of departure for the present analysis.

But where is this moment of transformation to be located? At which point did the modern system come into existence as an entity distinct from that which had gone before? Clearly the response to this question cannot be theoretically innocent, since it presupposes the more general question of what specific features characterise the present system. To state when ‘modern penality’ began is to know what modern penality is, and that question is one of the main issues at stake in this study. Consequently, the basis for our periodisation, and the arguments which support it, will not be presented now, but instead will be developed in the course of the exposition.

Nor is this simply a formal point emphasising the theoretical determination of historical periodisation. Other writers, concerned in their various ways with modern penality, have specified quite different historical moments at which the present system began. Thus the conventional penological understanding of the modern era as the ‘epoch of rehabilitation’ puts its starting point just after the Second World War, when evangelical reform and paternalism gave way to a more technical form of social engineering (cf. Bean 1976; Ryan 1983). Sociological writers such as Durkheim (1973) and Foucault (1977), on the other hand, locate the origins of the modern system – for both of them an origin signalled by the birth of the prison – much earlier, at the beginnings of industrialised urban society; whereas Marxist writers such as Rusche and Kirchheimer (1939) or Melossi and Pavarini (1981) equate the period of modern penality with that of the capitalist mode of production. Other commentators such as Cohen (1979 and 1983), Scull (1983) and Mathiesen (1983) suggest a more recent origin, inasmuch as they argue that the developments which have occurred over the last decade or so, especially the new ‘hidden discipline’ of community corrections, amount to a qualitatively new and different pattern of penality. Clearly the longevity of ‘the present’ and the way in which it is conceived are far from uncontentious.

The thesis which will be argued here locates the actual formation of the present system in the brief period between the Gladstone Committee Report of 1895 and the start of the First World War in 1914. Its argument will be that during this period the various elements which together compose the basic structure of modern penality were first assembled in a distinctive pattern which is discontinuous with the Victorian system, while being continuous with that of the present day. This is not to assert that there was some kind of total rupture in which the previous practices altogether disappeared to be replaced by an array of newly-invented institutions carrying no trace of their past.² Such ‘breaks’ have little in common with the process of historical change. On the contrary, many of the sanctions, institutions and practices which had existed within the Victorian system still survive and play an important role in the modern complex. Indeed, even the new institutions which emerged in this period such as probation, Borstal, preventive detention and ‘individualisation’ have obvious precursors and parallels in the previous period or even earlier. Nevertheless it will be argued that the pattern of penal sanctioning which was established in this period, with its new agencies, techniques, knowledges and institutions, amounted to a new structure of penality. This new structure displayed a distinctive pattern of sanctions, strategies and representations which ranged across an altered and extended domain. In particular, it involved a new logic of ‘penal-welfare’ which, as we shall see, had profound consequences for the overall operations and representations of the penal complex. Within this new structure, surviving elements of the Victorian system such as the prison, after-care or the fine were subjected to internal transformations as well as being allocated a new position in the penal network.

The following section will begin to substantiate this proposition by identifying the various elements which make up each of those two penal networks, as well as the form of their internal organisation and interplay. Thereafter there will follow a preliminary consideration of the different logics and modes of operation which underpin each of these two structures. This contrast between the Victorian and modern systems will take the form of a point-by-point comparison of elements, objectives and organisation, rather than employing the more dramatic Foucauldian device of stark juxtaposition, which sets the symbolic essence of the old against that of the new (cf. Foucault 1977: 1-5). Although losing out on figurative effect, this form of exposition is perhaps better suited to maintaining empirical accuracy and balance. In fact the differences which mark off the modern penal complex from its Victorian antecedents become clearer and more pronounced by the middle of the twentieth century, but since a qualitative or structural transformation is being asserted, and not merely a gradual shift of direction or emphasis, it should be possible to demonstrate this using evidence from the transition period itself.

The following account of Victorian penality and the modern system which replaced it will form the general background to an analysis of the transformation which separates them. In the course of that analysis it will be necessary to examine specific practices and institutions in a detailed and thorough manner, but for this preliminary comparison, less detail is required. Instead, a general overview of the two systems will be outlined, mentioning their major elements and characteristics in order that these may be kept in mind during the more specialised analyses which follow. The system which will be described, in convenient shorthand, as ‘Victorian penality’ is that one which had been