3 Punishment and the Political Technologies of the Body

Jonathan Simon

Foucault (1977) and published in French in INTRODUCTION: REVISITING THE 1975, and two years later, the Prison and BIRTH OF THE PRISON AND THE the Factory2 written by Italian sociologists REAWAKENING OF THE SOCIAL Dario Melossi and Massimo Pavarini (1981). STUDY OF PUNISHMENT Perhaps more than any other contributions, these two books helped to awaken the sociol- In important respects the 1970s was the ogy of punishment from its long 20th-century foundational moment for the revival of pun- slumber. ishment and society as a distinct and pro- Discipline and Punish and The Prison ductive intellectual field at the intersection of and the Factory shared a focus on the trans- criminology, sociology, political science and formations in the form of punishment at the history. We can point to multiple intellectual end of the 18th century, ‘the birth of the sources of emergence in the decade. In the prison’ as the Foucault put it, and the ‘origins UK, and the USA British cultural studies of the penitentiary’ as Melossi and Pavarini (Cohen, 1973; Hall et al.), radical criminolo- did. This historical moment was critical for gies (Platt, 1977; Taylor et al., 1973) and all these themes that were reanimating pun- historians studying crime and society in 18th- ishment and society, the problematization of century England (Hay et al., 1975; Thompson, crime rates, the beginnings of a rehabilitative 1976) all rediscovered Durkheim’s interest focus to punishment, a moment of profound in the relationship between crime and social social and political revolution. These were order (Garland, 1990). not the only studies at this time reexamin- On the continent two books written quite ing this phase of penal history, but compared independently helped bring punishment and to others historians who focused more on its forms and methods to the fore of this new changes in the political and moral ideas interest in criminal justice; Discipline and associated with punishment at the end of Punish: The Birth of the Prison,1 written by the 18th century (Rothman, 1972; Ignatieff, French philosopher and historian Michel 1979) the two books shared attention to the

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precise relationship between changing forms and the Factory, were dedicated. Both books of punishment and developments in the were primarily concerned with understand- available schemas for coordinating and con- ing the emergence of the penitentiary in the trolling human bodies to produce power or context of the 18th and 19th centuries, and political authority, or as Foucault framed it the emergence of an industrial capitalist to ‘try and study the metamorphosis of puni- economy. Both studies focused readers on tive methods on the basis of a political tech- the importance of discipline as a specific (if nology of the body in which might be read very broad) technology of power that was a common history of power relations and crucial to the emergence of the penitentiary object relations’ (1977: 24). Each book exam- as the solution to the political problems of ined the early prison and many of the same traditional forms of outdoor physical punish- carceral practices that had preceded it (like ment that had come under scrutiny at the the work house), not from the perspective end of the 18th century. This creates a sig- of it is determined by either crime or law, nificant problem for contemporary students nor even as a function of some generalized coming to the study of punishment in the features of the social order, but for its capac- early 21st century, at a time when resurgent ity to harness effective technologies of power global capitalism has little interest in disci- over the body. plining a domestic working class (finding it This approach was a radical break from the cheaper to search globally for culturally docile classic works of the sociology of punishment, ones), and when the disciplinary logic of the including both Rusche and Kirchheimer’s prison has largely been superseded by other (1939 [2003]) analysis of punishment with penal projects, especially in the USA, the respect to labor markets,3 and Durkheim’s exclusionary logic of ‘mass incarceration’. 1892 (1997) analysis of punishment with This chapter aims at recovering the pro- respect to social solidarity. While Rusche and ductive potential for analyzing punishment Kirchheimer and Durkheim moved the study as a political technology, by suggesting that of punishment away from an exclusive focus Foucault, and Melossi and Pavarini demon- on law and crime, they treated penal prac- strate an analytic approach that can be useful tices themselves as mostly a reflection of the well beyond the specific historical terms social structure in which they were being of its application in their celebrated books, deployed. Their powerful insights about the and by examining the work of subsequent work punishment does in society are often authors who have pursued this kind of analy- accompanied by fairly superficial analyses of sis in revisiting the history of the prison, how punishment is actually carried out and and moving forward in history through two what it does to those subjected to it. It is other periods of profound change in punish- Discipline and Punish and The Prison and ment in many industrial and post industrial the Factory that the ‘how’ of punishment societies. comes sharply into focus.4 Today this focus To speak of a technology of power, or a punishment in relation to technologies of political technology,5 is not to engage in a power continues to shape a great deal of metaphor. Foucault is not suggesting that the work in punishment and society (Shalev, intellectual schemas he extracts from the 2009; Garland, 2010; Harcourt, 2011). emerging vision of the prison are can be In this chapter, I want to extract the ana- analogized to machines. Technology comes lytic approach of studying the changing from the Greek techne meaning ‘art, skill forms of penal practice in relationship to or craft’; it is, in that sense nothing techno- technologies of power over the human body logical in our common sense of machine and its conduct and relations from the spe- operated. It would be a mistake in this con- cific case of the birth of the prison to which text, to conflate penal technologies, like say both Discipline and Punish, and The Prison the electric chair, or the one piece toilet sink

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used in many modern cellular prisons, and as well as dispositifs the overall ensembles the political technologies of the body upon or structures that bring them together to which a broad configuration of the power to anchor the exercise of power at particular punish rests. Tools and techniques are part times and places. However, the researcher of technology, but it also includes ‘crafts, in punishment and society does not have to systems, or methods, for organization in adopt this whole framework, to make pro- order to solve some problem or serve some ductive use of the analytic strategy of reading purpose’ (Wikipedia). A political technology penal change through technologies of power. of the body, then, is a craft, system, or But rather than working this term into the method for organizing bodies to produce broader structure of Foucault’s terminology specific effects that have a political value or (e.g. bio-power, governmentality, etc.) it is purpose. Punishment is a political technol- more valuable to see the analytic work that ogy in this sense, but changes in how punish- political technologies do in Foucault research, ment is carried out can also be related to the as comparable to what social theorists, such circulation of technologies of power from as Pierre Bourdieu (1986), get from their elsewhere into the penal field. analysis of differential capitals, and sociolo- The focus on punishment and politi- gists of science, such as Bruno Latour (1987), cal technologies should not lead us to ignore get from concepts such as ‘black boxing’ or institutions, specific techniques, or penal ‘actor/network’. actors and their strategies and projects. Any Both Discipline and Punishment and particular penal institution, such as capital The Prison and the Factory gave their central punishment, imprisonment or even the fine, focus to ‘discipline’, a technology of the has a history of its own and is shaped by a body which according to Foucault, combined variety of factors. Technologies of power surveillance or monitoring, corrective exer- are only part of the ensemble of determining cise and examination to constitute control the features of penal institutions over time. over a group of individuals but in ways that They become particularly important, I will also make them as a larger ensemble, more argue, when institutions are undergoing pro- productive and effective. Both books identi- found pressure for change, and activists and fied the continuity between the disciplinary reformers are seeking new strategies and colonization of the spaces and procedures of projects to address suddenly apparent scan- penal justice in the 18th and 19th centuries dals or flaws in the operation of traditional and contemporary prisons and the broader institutions and practices. In doing so they criminal justice field (as of the 1970s). Many will often promote a particular technique, readers ever since have take the point to be for example, isolation or the silent system in the relationship between prison and disci- the early penitentiaries. pline, or a disciplinary technology of power, I argue that analyzing change in penal or even, more misleadingly, ‘disciplinary methods through political technologies pro- power’. In the first decade after both books vides a productive ‘middle range’ framework were published, many students of punish- that can help identify and organize evidence ment and society debated whether the modern about specific practices and techniques at correctional field, as it still existed in the the micro-level, and probe the relationship early 1980s with many of the institutions of between changing penal institutions and ‘penal-welfarism’ (Garland, 1985) still func- practices and developments in political and tioning, for example, parole, probation, juve- economic structures of society at the macro- nile justice, correctional prisons, were best level. Foucault was a great generator of understood as an extension of the discipli- evocative analytic terms, writing variously nary technologies associated with the rise of of technologies, strategies and rationalities, the penitentiary, or as developed through

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brining in new and distinctive technologies to adopted for the first two periods. The rise the field of punishment (Cohen, 1979; of the penitentiary style prison was widely Bottoms, 1983; Mathiesen, 1983; Shearing adopted across the advanced societies by and Stenning, 2003; Garland, 1985). In the the middle of the 19th century. Likewise, the intervening decades, penal welfare has itself second wave of transformation, around penal- has been transformed by a new wave, espe- welfarism, was widely adopted between cially in the USA, of prison expansion and the end of the 19th century and the middle reshaped by the imperatives of incapacitation, of the 20th century. In the third period how- control, and containment (Feeley and Simon, ever, there is rather more divergence than 1992; Garland, 2001a; Wacquant, 2009). can captured by the metaphor of lagging In making sense of penal change I will change over time. The USA, with its mass argue it is most productive to think of the incarceration and supermax prisons has disciplines as just one political technology broken decisively with second period prac- that has shaped the evolution of punishment. tices, but it is far from clear that this is a road For any period of transformation, for exam- the rest of the advanced countries will follow. ple from the late 18th century to the 1830s The account given here, of the third period, in the USA (Meranze, 1996) and parts of therefore, focuses heavily on the USA, with Europe, or the 1880s through the 1920s in readers invited to imagine alternative paths the UK (Garland, 1985), it makes sense to in their own societies. explore the full range of political technolo- In the first section, drawing on both gies available to help rework the methods of Discipline and Punish and The Prison and punishment, and try to make sense of why the Factory, I will try state more precisely the certain ones prevail.6 For analytic purposes, analytic significance of the move from a soci- I argue that it is most productive to think ology of punishment, such as both Durkheim about three historical periods including and (1997) and Rusche and Kirchheimer (1939 following the birth of the prison, in which [2003]) performed it, to a study of punish- the array of modern penal techniques have ment and political technologies. Since this been reworked by the introduction of new ‘tool-kit’ gets shaped in the very productivity technologies of power. Table 3.1, provides a with which both sets of authors used it schematic over view of these periods. to interrogate the already well-established These are the birth of the ‘penitentiary’ empirical record concerning the emergence in the 19th century, the advent of ‘penal- of the penitentiary and its relationship to welfarism’ (or ‘the social’) that includes early industrial capitalism in the 19th cen- the development of new penal institutions tury, my discussion will focus on their use of like probation and juvenile justice in the this framework. early 20th century, and the development of In the second section, we will examine the mass incarceration (Garland, 2001a; Western, emergence of ‘penal-welfarism’ (Garland, 2006) in the late 20th and early 21st centu- 1985) and the emergence of new institutions ries. Reality is, of course, too complicated like parole and probation during the maturing for matrices, whether with two rows or three, of industrial capitalism in the early 20th cen- especially when we look across the variety tury. In the third section, we will explore of penal cultures in the world today. Even mass incarceration and related practices of focusing on the advanced industrialized and containment and exile contemporary punish- liberal societies of the West (Europe, North ment as a ‘containment’ technology of penal American, parts of Asia and Australia), there exclusion and exile in the context of ‘neo-’ is more diversity than can be artfully pro- or ‘advanced’ liberal efforts to govern in jected on paper. For present purposes how- the context of an increasingly global form ever, the fiction of uniformity can be usefully of capitalism.

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Table 3.1. Technologies of punishment and the political economy of the body

Century Political economy Technology of control Exemplary penal form Target of penal technology Nature of the penal subject Scholarship 18–19th Emerging industrial Discipline and training Cellular (Panoptic) ‘Soul’ Recalcitrant member of the Foucault (1977); Melossi and capitalism of the body through Prison ‘dangerous classes’ who Pavarini (1981) exacting labor must be made a ‘docile and useful’ worker 19–20th Welfare capitalism Supervision of the body in Probation ‘Social network’ Defective adult whose Garland (1986); Platt (1972); the community through integration into society Rothman (1980); Simon surveillance, interviews, has been undermined (1993) standardized tests by immigrant status, or biological/psychological defects 20th–21st Neoliberalism Containment through Supermax prison/ ‘Dangerous class’ ‘Predator’ – high risk offender Bottoms (1983); Feeley and confinement or constant electronic prone to either repeat or Simon (1992, 1994); monitoring of the monitoring violent crimes Garland (2001); position of the body Wacquant (2009) 44/24/2012 3:22:21 PM / 2 4 / 2 0 1 2

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DISCIPLINE: RE-WORKING effects. This is quite clear from the way PUNISHMENT FOR each of them relate to the seminal work of CAPITALIST SOCIETY Rusche and Kirchheimer (1939 [2003]) whose study published as Punishment and In what can be justly thought of as a ‘big Social Structure drew on Frankfurt School bang’ moment for the contemporary field Marxism (Jay, 1973) to examine the relation- of punishment and society, Foucault’s book, ship between changes in the methods of Discipline and Punish was published in punishment and changes in the demands of 9 France in 1975 and over the next two years capitalist labor markets. an English translation appeared in the UK For both Foucault (1977) and Melossi and then the USA to largely rapturous reviews and Pavarini (1981) political economy was and a broad interdisciplinary audience. Far a starting point of analysis, but they do not less noticed at the time (although it quickly attempt to interpret the logic of penal prac- became a classic among students of punish- tices directly through an analysis of political ment) was Melossi and Pavarini’s, The Prison economy. Both took ideas as central objects and the Factory, which first appeared in of inquiry, but they avoided the then standard Italian in 1977 and was published in English Marxist recourse to treating ideas as ‘ideol- translation in 1981. It is remarkable in retro- ogy’, that is, as a way to way of producing spect how close in intellectual discovery and the consent of the exploited to their exploita- 10 insight these two completely independent tion. Instead both enterprises treat ideas as research enterprises turned out to be.7 Both instruments for practical action and adminis- approached the prison in the context of the tration. Finally, both books treat the emer- larger reworking of power relations under gence of a distinctive penal subject behind early capitalism. Both saw the penitentiary the crime and the punishment, ‘the abnormal/ style prison as a reworking of methods first normal individual’ (Foucault, 1977: 24) not developed in workhouses, asylums,and other as the reason for a reconfiguration of punish- sites for control over the deviant (but not ment but as its effect. necessarily criminal) populations of early For Rusche and Kirchheimer (1939 modern Europe. [2003]) it is the revaluation of labor power that produces the crisis of scaffold punish- ments11 at the beginning of the 19th century. Technologies of power With the advent of wage labor, punishments that primarily kill and wound become prob- In the case of Foucault, it has been tempting lematic. The criminal body can now be to treat his analysis of the birth of the prison valued as a laboring body, whether laboring as offering a power-based theory of punish- in prison or back in ‘free’ society under some ment that parallels those of sociologists of penal status, or as an ex-prisoner, a status that punishment working in either a Marxist or has some commercial value, however low it Durkheimian approach.8 Bringing Melossi may fall, that is some value in a capitalist and Pavarini back into the picture makes market for labor that is not totally dependent clear that the common innovation they share on local hierarchies.12 But Rusche and with Foucault, is with an attention to tech- Kirchheimer have little to say about why the nologies of power, not as a rival theory of the prison emerges as the key replacement for penal field to Marx or Durkheim, but as an scaffold punishment in the 19th century, as analytic method to the history of penal opposed to other labor oriented punishments change, one that attends to the field of forces, that preserve and exploit the labor power of both intellectual and material, that penal penal subjects. Indeed the variability in the practices bring to bear on the body of penal history of punishment seems to speak to this subjects, and on the resulting power and truth loose coupling. Before beginning his own

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account of the system of wounding and kill- broadsheet newspapers as well as in the ing scaffold punishments, Foucault notes that telling of the sometimes massive audiences ‘Rusche and Kirchheimer are right to see it drawn to see executions. as the effect of a system of production in A second technology involved deploying which labour power, and therefore the human bodies in highly staged public acts of useful body, has neither the utility nor the commer- service, which Foucault described as a cial value that are conferred on them in an ‘school rather than a festival’ (1977: 111), economy of an industrial type’ (1977: 54) in which citizens would learn the virtue However, it is not an account that can of the law through watching its execution. explain why it is the disciplinary prison that Some of these practices, such as wheel- emerges as the almost universal solution to barrow men who cleaned public streets in the problem of punishing those convicted of Philadelphia at the end of the 18th century serious crimes (or even repeated minor crimes) were tried (Meranze, 1996), while others by the end of the 19th century throughout only reached the stage of proposals, many these societies. Capitalist England, for exam- from the great critics of the scaffold includ- ple, which does seem to revalue the labor ing Beccaria, Jefferson and Montesqieu. power of criminal bodies, and cut its heavy The third technology was discipline, the reliance on the scaffold during the industrial arts of surveillance, exercise and judgment take off in the late 18th and early 19th centu- that were quite visible in places like the ries, experiments with a number of penal national militaries that formed in response methods including transportation, before set- to the Napoleonic wars at the beginning of tling into the penitentiary style prison in the the 19th century and had been increasingly middle of the 19th century. used as a punitive relief measure for the dis- Melossi and Pavarini (1981) as well, deve- reputable poor. In institutions like the influ- lop their account precisely to fill in this ‘gap’ ential Amsterdam Rasphuis, where indigent in Marxist historiography of the prison. And men were set to turning logs of wood into both will conclude that it is the facility of sawdust for the burgeoning paint industry. prison to serve as a site for deployment of The question that both Discipline and disciplinary techniques, or corrective train- Punish and The Prison and the Factory set ing combined with harsh demeaning labor out to answer is ‘[h]ow is it, that in the end, that primarily determines its emergence. it was the third that was adopted’ (Foucault, There were at least ‘three technologies 1977: 131).13 of power …’ available to recasting the exer- In seeking to answer this very precise cise of the power to punish at the end of the research question, both books follow three 18th century (Foucault, 1977: 131). One was important methodological strategies. a technology of physical control and coer- cion of the body to produce pain, mutilation and humiliation, which remained part of the Treat political economy as the horizon still predominant practice of punishment for penal change but as upon the scaffold was utilized as well in the under-determining it closely related practices of judicial torture. In addition to praising Rusche and The scaffold may have been becoming prob- Kirchheimer for disavowing a juristic under- lematic for reasons of labor markets (Rusche standing of punishment, Foucault goes fur- and Kirchheimer, 1939 [2003]) as well as ther, embracing their effort to correlate the for changing moral sensibilities (Durkheim forms of punishment with the ‘systems of 1969), but it continued to produce effects of production in which they operate’ (1977: 24). both truth and power in the wide circulation Indeed, he notes, ‘we can surely accept the of real and contrived sights and statements general proposition that, in our societies,14 on or about the scaffold, transmitted through the systems of punishment are to be situated

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in a certain ‘political economy’ of the body’ as readily incorporate a clear direction for (1977: 25). It is unclear whether he means change. by this fully embrace a Marxist sort of politi- cal economy of the sort that Melossi and Treat penal ideas as technical rather Pavarini do.15 For Melossi and Pavarini, than moral much the same gap is at issue. Both Discipline and Punish and The Prison and the Factory seek to take the design of the It needs to be stressed, of course, that a hypoth- penitentiary seriously as an intellectual rather esis restricted largely to the relationship beween the labour market and forced labour (in the than simply moral or economic innovation sense of unfree labour) cannot exhaust the entire but at the same time avoid privileging the thematic of the workhouses. … The function of enlightenment narrative that accompanied workhouses was undoubtedly much more com- the emergence of the penitentiary and which plex than that of being a simple regulator of free casts the prison as product of enlightened labour. To put it a different way, one could say that this last objective taken in its fullest sense reasoning about punishment. The focus on means control of the labour force, its education punishment as a technology allows them to and training. … Workhouses and many other foreground intellectual breakthroughs in the similar organizations respond especially to this design of the form of punishment as shaping need. (1981: 17, original emphasis) both new penal purposes like reform and penitence and the new human sciences that Thus for both books, the study of punish- begin to claim a primary role in organizing ment as a technology of power begins with the power to punish (Foucault, 1977: 23). political economy as a kind of horizon for It is not to the better established sciences punishment, establishing its functional or philosophy that one should look to find imperatives and negative constraints but not the ideas that made confinement in the specifying its form. ‘Analyze punitive meth- cellular prison the solution which has domi- ods not simply as consequences of legislation nated our penal imagination now for some or as indicators of social structures, but as three hundred years, but to a murkier terrain techniques possessing their own specificity of semi-practical knowledges, associated with in the more general field of other ways of technical rather than academic expertise.16 For exercising power’ (Foucault, 1977: 23). Foucault the technologies of power are often It is not surprising that penal institutions to be discovered among those minor tech- respond quickly and early to profound changes niques, uncelebrated by historians compared in political economy. As institutions that are with the great scientific technologies, con- largely bound to fail in their own terms of trasting the telescope and lens with the tech- suppressing crime, and which are likely to niques of visibility at work in army camps). come under particular stress and scrutiny To speak of a ‘technology of power’ does during periods of social conflict, penal insti- not imply that completely specified template tutions are always about ‘reform’; either the or ‘blue print’ for producing practices. existing ideals, still in need of proper imple- mentation, or through proclaiming new ideals. Of course, this technology is diffuse, rarely formu- When something important changes in the lated in continuous, systematic discourse; it is political economy, throwing into question the often made up of bits and pieces; it implements a practicality or relevance of existing assump- disparate set of tools or methods. In spite of the tions about social stability, the legitimacy coherence of its results, it is generally no more than a multiform instrumentation. Moreover, it of the institutions of punishment are likely cannot be localized in a particular type of institu- to be seen as in crisis and requiring dramatic tion or state apparatus. (Foucault, 1977: 26) changes. While the new framework of politi- cal economy often comes with a ready cri- Foucault’s analysis of Bentham’s Letters tique of existing penal practices, it does not on the Panopticon, which Foucault drew on

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at great length in his examination of the The relationship between punishment and precise mechanisms of disciplinary power political technologies then runs through the may have subverted his own caution, writing body. It is not the technology itself that pun- that the ‘Pantopicon … is in fact a figure ishment absorbs, but a way to control bodies. of political technology that may and must The modern delinquent, the abnormal/normal be detached from any specific use’ (Foucault, individual, the docile worker, is itself the 1977: 205). Melossi and Pavarini detect this long-run effect of a certain technology of precisely as the key insight in Foucault’s power over the body. Discipline and Punish and the link with their own project. History of the Present The great merit of Michel Foucault’s recent book is that it places the relationship between Both Foucault in Discipline and Punish, technique and the ideology of control back on its feet, demonstrating how ideology (obedience and Melossi and Pavarini in The Prison and and discipline) does not come to determine practi- the Factory, expressly brought to the center cal reason, the morality, but how on the contrary of their analysis, a concern with the present this is produced by specific techniques of control and the role of penal institutions in it. In this over the body (in military art, school, ateliers, etc.). sense both are doing what Foucault called (1981: 45, original emphasis) a ‘history of the present’.18 For both, the Taking our lead from Melossi and Pavarini, political turmoil and struggles in the early it is crucial to focus the inquiry not on the 1970s within the prisons, factories and uni- more grandiose schemes of various penal versities, provided a grid of intelligibility for reformers but on the precise ways in which revising the standard account of the history particular mechanisms exert ‘specific tech- of penal reform. The disciplinary logic of the niques of control over the body’. penitentiary and its successors had been hiding in plain sight, disguised only by the Follow the body Whiggish self-congratulation that saw in the The shift from scaffold to penitentiary seems shift from scaffold to reformatory the long to suggest a remarkable letting go of the overdue recognition of the criminal’s human- body which had been the focus of both the ity. The political struggles of prisoners and scaffold ritual and its instruments. Both students made visible the coercive and bodily Discipline and Punish and The Prison and technologies of power behind that humani- the Factory, show that just the opposite tarianism. As Foucault put it: occurs, the body of the criminal becomes What was at issue [in the prison revolts of the even more invested by the practices of pun- 1960s and 1970s] was not whether the prison ishment that now substitute the brief if environment was too harsh or too aseptic, too intense festival of pain with a constant and primitive or too efficient, but its very materiality more or less meticulous control of the body. as an instrument and vector of power; it is this If the penitentiary and its successors claimed whole technology of power over the body that the technology of the ‘soul’ – that of the educational- to work on the soul or psyche, this was rather ists, psychologists and psychiatrists – fails either to an effect of the deployment of a discipli- conceal or to compensate, for the simple reason nary power over the body. Thus in Discipline that it is one of its tools. (1977: 30) and Punish, Foucault famously pronounces 19 that:17 In their extended response to Foucault, published as an appendix to the English The individual is no doubt the fictitious atom of translation of their book, Melossi and Pavarini an ‘ideological’ representation of society; but he is also a reality fabricated by this specific tech- criticized Foucault (or at least the reception nology of power that I have called ‘discipline’. of Discipline and Punish among students of (1977: 194) punishment) precisely for straying from the

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history of the present into a more general Political economy sociological theory of punishment. Foucault situates the crisis of scaffold pun- In conclusion, without denying the ishment at the point of emergence of both extremely salutary and profound impact a capitalist economy - both in terms of wage which Foucault’s perspective has had (also) labor and the rise of valuable commercial in relation to the history of the prison institu- commodities - and in the growing democrati- tion, it seems to me that the kind of detailed zation of public space and the concomitant work required in this field is local research increase in the regularity of mass public unconstrained by ‘great visions’ of an ideo- events. The scaffold punishments were logical nature; research which would facili- viewed as increasingly problematic in rela- tate an appreciation of local strategies and tion to a number of specific issues arising moves in the game of social control. It is, in from these transitions.20 fact, probable that such research will induce Punishment was seen by this new public, us to abandon any general hypothesis as to especially the rising influence of those recurrent or fixed relationships between involved entrepreneurial capitalism, as need- large-scale socio-economic data. Instead, our ing to become more effective in protecting interest would focus on clearly defined rela- property from the rising importance of theft tions valid at specific times and within spe- and more congruent with a general social cific parameters in relation to particular demand for the regularity of hard work. The societies, particular periods, particular forms old scaffold punishments were increasingly of social control, class composition, and so inapt to respond to property crimes because forth (Melossi and Pavarini, 1981: Appendix their very severity encouraged forms of leni- p. 195) ency that undermined the deterrent power of the criminal law. The scaffold, with its festival like ambience and its celebration of the excessive and the atrocious, produced The penitentiary an inapt effect, interrupting both production For both Discipline and Punish and The and routine civic order. For many of the same Prison and the Factory, the empirical focus reasons, scaffold punishment was an obstacle of their analysis is the emergence of the to producing a more orderly and businesslike penitentiary style prison as the dominant public. Far from being an encouragement mode of sanctioning serious crime, a process to a more controlled society, the rituals of that begins at the end of the 18th century and the scaffold encouraged drinking, fighting is largely complete in the emerging industrial and encouraged the solidarity of friendship societies by the middle of the 19th century. and kinship networks. Through the 18th century imprisonment As Melossi and Pavarini describe the logic remains mostly a place of detention for those of workhouse labor it is clear that the effect awaiting, trial, execution or pardon. It rarely is not just on the penal subject but on the figured as a punishment itself. Yet through- larger milieu of working class life: out that century, interest had grown in The prominence given to order, cleanliness, uni- using indoor relief of vagrants and the very, forms, hygiene (except of course when it came to coupled with coercive work exercises, to working conditions), the rules against swearing, discourage begging and encourage habits using slang or obscene language, reading, writing of work. It is the shift of these disciplinary or singing ballads unless allowed by the governors technologies from the space of the work- (in a place and time characterized by the struggle for freedom of thought!), the prohibitions house to a space defined as punishment by on gambling and the use of nicknames, etc. - all the middle of the 19th century that both of this constituted an attempt both to impose books consider. the newly discovered way of life and to smash a

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radically counterposed underground popular cul- the deprivation of their liberty … but more ture which combined forms of the old peasant significantly, it stemmed from the fact that it way of life with new methods of resistance called employed, albeit in a more explicit and intense forth by capitalism’s incessant attacks on the form, all the disciplinary mechanisms found else- proletariat. (1981: 22) where in the social body for transforming individu- als. (1983: 74)

Melossi and Pavarini (1981) also identify The triumph of a disciplinary the spread of disciplinary technologies technology of control over through a whole set of formally distinct insti- the body tutions dealing with the poor. The prison is For Foucault, the prison emerges as the only one institution that finds in disciplinary dominant method of punishing serious crime technology of power over the body, a reliable in modern society, out of the three possible new platform for reconstructing punishment technologies of punishment in part because for an age of industrial capitalism. unlike the scaffold, or the ‘punitive city’ as a The total impoverishment of the individual takes social school model of outdoor expressive place in manufacture and in the factory; but punishments that some of the 18th-century preparation and training is ensured by a string reformers favored (Meranze, 1996), the of ancillary institutions from which basic features prison did not aggravate these problems and of modern life have already begun to develop by indeed seemed a promising way to diminish this time: the nuclear family, school, prison, the hospital and later the barracks and the mental them. The prison permits a far more gradu- asylum ensure the production, education and ated system of sanctions, the better to encour- reproduction of the workforce for capital. (Melossi age full enforcement of the criminal laws and Pavarini, 1981: 23) protecting property. It operates to enforce discipline and self-control on those subjected Both Foucault and the Melossi and Pavarini to its rigors without the need or occasion for saw the target of the disciplinary power to unruly publics to gather. Indeed, linked to the punish as the bodies of recalcitrant members parallel network of metropolitan policing, of the lowest classes, displaced from rural which emerges in the 19th century, the penal areas by the new commercial agriculture. system can operate as a continuous and Crowded into towns and cities, most of unobtrusive system of control facilitating which did not yet have ways of profitably rather than interrupting the public. employing them in labor, the mobile poor However, this ‘fit’ of the prison is not based became the ‘dangerous classes”’ greatly on its theoretical foundations, let alone on feared by the upper classes of early 19th- whether they turn out to be empirically cor- century Europe and in the USA (Chevalier, rect, but instead, for Foucault, on the spread 1958; Vogel, 2004. of the throughout society of mechanisms and institutions based on a disciplinary technol- ogy of power. This disciplinary network The soul of punishment allows the prison to appear as able to exercise Both books argued that the penitentiary the power to punish in light of the political was designed to produce as an effect, a dis- economic challenges facing the power to tinctive subjectivity. For Melossi and Pavarini punish in the 19th century. As Barry Smart it is the disciplined subject of industrial aptly put it in a helpful early interpretation: labor. The prison, they note, like the work- shop, is less another place for production The self evidence which imprisonment soon assumed as the generalized form of punishment than ‘a place for teaching the discipline of was a consequence not only of the apparent production’ (1981: 21, original emphasis). appropriateness of punishing offenders through For Foucault (1977) disciplinary practices

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produce above all, a delinquent subject, a from the center of penality by a panoply of abnormal/normal individual, whose life new penal institutions including probation, course of persistence in crime became the parole, and juvenile justice. All of these share real and permanent concern of the legal a focus on the offender in his or her social system.21 milieu. Rather than isolating the person Subsequent work would question this con- engaged in criminal conduct in a space of total tinuity between the disciplinary technology control, all three bring the power to punish, at work in the birth of the prison and the and now correct, out into the community. more overtly psychological and individual- izing regime that is in full flower in the 1970s.22 Garland (1985) argued that Foucault Industrial capitalism and the was wrong, at least as to the Victorian penal early welfare state system, to assume that a significant degree of individualization was associated with the This reconfiguration of the power to punish practice of discipline. The disciplined subject began in the last decades of the 19th century of the penitentiary remained a highly abstract in the most developed capitalist countries, and ideological figure in prison discourse and gained momentum throughout the first and practice of 19th-century prisons. Neither half of the 20th century, achieving its greatest the length of sentence, nor in any significant strength in the first two decades after the way the treatment of prisoners was varied Second World War when the relative afflu- based assessment of their psychological ence afforded by mature industrial capitalism condition (except at the very extreme of the gives rise to an unprecedented extension of insanity defense). welfare measures throughout society. While the very cellular architecture of If the political economic imperative behind the prison was arguably a surface ready to the crisis of scaffold punishments was the be deepened by an individualizing knowl- need to create appropriate social condi- edge of the life history of the penal subject, tions for the flourishing of capitalism, includ- Garland is convincing that this is a later ing the formation of an industrial working development. In our framework here, it is class, or ‘proletariat’, beginning in the late seen as part of the second phase of penal 18th century, the problem for power at the transformations discussed below. end of the 19th century is how to integrate that proletariat into the structures of an increasingly consumerist urban society and democratic polity. In Garland’s (1985) clas- WELFARE: THE SOCIALIZATION sic account of the breakdown of Victorian OF PUNISHMENT IN THE ERA OF penality23 (which was very much anchored INDUSTRIAL CAPITALISM in the penitentiary model and its discipli- nary technology) at the end of the 19th cen- Historians and sociologists have long agreed tury, he points to twin imperatives of political that the late 19th and early 20th centuries economy in the world’s most advanced represented a significant reorganization of capitalist society of that era. The first is the the legal and organizational fields in which movement of the leading edge of British the power to punish operated one almost as capitalism into an era of consolidation dramatic as the one that saw the scaffold (Marxists would say Monopoly capitalism). replaced by the penitentiary (Schlossman, The second is the democratization of British 1977; Rothman, 1980; Sutton, 1988). society, primarily the expansion of the Although the prison did not disappear by any electoral franchise to include those without means (neither for a long time did the scaf- property (and thus very likely) working-class fold), it was supplemented and displaced voters.

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For Garland, the argument is not that these Probation and the power of very important changes in the distribution the social of power in the UK (and other advanced industrial countries) produced or projected A host of new penal practices emerged to a new array of penal methods, or demanded address this growing gap between the current on their own the deployment of a new tech- problems of insecurity and the confinement nology of power with in the penal field. It logic of 19th-century penality; including is rather that against the background of specialized prisons for particular types of these changes in political economy, the offenders and penal measures designed to be existing penal practices were becoming polit- implemented in the community including ically problematic. The prison, of course, probation, parole and juvenile justice. Of endured, and it remained in many respects all the new penal techniques that emerged in at the center of penality even as probation the late 19th century and become widely began to account for an equivalent or larger spread among jurisdictions in the early dec- portion of what could now be called the ades of the 20th century, probation must be ‘correctional population’.24 But the narrative considered the exemplary form. Unlike its of the prison, the account of how it could close cousin parole, probation does not await provide a meaningful contribution to public the corrective discipline of a prison sentence, order was losing its currency (Simon, 1993; but seeks to correct the offender without Bright, 1996). removing them from the community. Unlike For 19th-century government, prisons, the juvenile court, which shares the same as well as indoor relief for the poor in work- intention to avoid the incarceration of the houses, constituted an extraordinarily expen- delinquent, probation takes on the adult sive way to govern the poor. It was a practice convicted of crime without the premise that premised on an alarming conception of the its subject is not truly a proper offender urban poor as ‘dangerous classes’, an almost because of their young age or the responsibil- alien like threat, who must be isolated to ity of parents. Probation incorporates a set of disciplinary institutions of the most coercive elements that will be widely shared by all sort (Chevalier, 1958). As Garland’s detailed three including a professional penal agent, the 25 account of the Victorian confinement (not casework method (borrowed from the closely only the prison but the workhouse) suggests, related field of social work), and the involve- its legitimacy was premised on the moral ment of positive pro-social forces within the virtue of treating coercively all those who community itself, including clergy, teachers failed the premises of liberal economic and employers. As Leon Radzinowicz wrote theory. The extension of the franchise to all of probation from the middle of the 20th male citizens regardless of property owner- century: ship and the formation of a ‘respectable’ working class with a claim on government If I were to be asked what was the most signifi- cant contribution made by this country to the responses to the predictable insecurities of new penological theory and practice which market capitalism, created a growing tension struck root in the 20th century … my answer with harshness of Victorian confinement would be probation. (1958: x, quoted in Raynor, strategies. So while the prison may not have 2007: 1062) suffered as significant a status decline as scaffold execution did (the latter largely dis- But as we asked of the scaffold’s replace- appearing within a 50-year period), it suf- ment by the prison, what makes the new fered a two-sided loss of legitimacy (Sparks penal mechanisms, probation, juvenile courts, et al., 1996). A less demonized public image parole, individualization in sentencing and of the lower classes made its necessity less classification, an appropriate answer to the apparent, and its high costs more visible. problems of the 19th-century prison, and

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does it make sense to speak of this new penal Jacques Donzelot (1979), in his parallel style as drawing on a distinctive technology study of social control mechanisms in France of power over the body? Garland (1985) does at the end of the 19th century describes the not use that phrase nor ever claim for the new logic of control as that of ‘the social’. common themes among the new penal tech- Like disciplinary practices that are spreading niques of the early 20th century the coher- in workhouses, asylums, schools and facto- ence that Foucault (1977) and Melossi and ries in the late 18th and early 19th centuries, Pavarini (1981) seemed to give to the disci- ‘welfarism’ or the ‘social’ technologies were plines, but he does describe four broad pro- drawn from the field of poor relief and grams,26 criminological, social work, social helped to constitute a broad new strategy for security and eugenics, out of which, and reconstituting the penal field and addressing through a heavily political process subject to the political problems of insecurity and ine- lots of conjunctural events, a ‘penal strategy’ quality in maturing capitalist societies for emerges, that of ‘penal-welfarism’, which penality is both a fertile ground and an In reviewing Garland’s account of the opportunity for advanced development penal strategy that emerged during this (because of the power of the legal sanction). period, we can however discern a technology As historians of the subject agree, the imple- of power over the body one which was bor- mentation of this new strategy was deeply rowed from domain of charitable work among reworked by politics and the existing institu- the poor, and which eventually was profes- tional realities27 into which these reform sionalized as social work in the early 20th proposals were ultimately introduced (Hagan century. Across these reform measures, most et al., 1979; Rothman, 1980; Garland, 1985; not new but an upgrading of existing private Sutton, 1988). Yet the same historians concur initiatives that had existed for some time that they were incredibly successful in win- around the edges of the penal field, into ning relatively rapid spread (easier in the UK grander public projects (Sutton, 1988), there and most European nations than in fractious is a common logic based on individualizing nation states such as the USA) and that real persons convicted of crimes, using the case- redistributions occurred in the hold of institu- work method, and either pursuing a correc- tions on bodies. This is especially true of tive supervision of them in the community probation, and its post-confinement sisters, designed ameliorate the particular variables which bring large numbers of people under encouraging crime in their individual case, their jurisdiction, some who would otherwise or assign them to a custodial institution have been in penitentiaries but many more appropriate to their classified need or risk. who would not have been subject to this cor- All of these practices would seek out and rectional control but for the reforms. apply corrective methods to the penal subject Garland, writing after Discipline and in their actual social context (rather than Punishment and The Prison and the Factory in confinement) by not being tied to or down had powerfully asserted the historical impor- by a punitive legalistic concern with a tance of discipline and its continued rele- legal conviction for a very serious criminal vance in the present (the 1970s and 1980s), offense. They would intervene earlier in was confronted with the question of whether the life of delinquent individual but stay the the transformations in the penal field at the hand of the most punitive consequences start of the 20th century should be seen as where the prospects for correction were an extension of the disciplinary technology good. At the same time, and seamlessly, of power that operated in the penitentiary. they sought out those who posed a risk of In Discipline and Punish, Foucault drew a serious criminality and segregate them as direct line between the rise of the peniten- much and as early as necessary to protect the tiary and the 20th-century practices that public. remained seemingly strong in the early 1970s

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and suggests that they have been steadily from fixed positions in closed institutions extended into society: to produce complete surveillance and inter- nalized obedience in the prisoner. If it distin- The frontiers between confinement, judicial pun- ishment and institutions of discipline, which were guishes among individuals, it is only along a already blurred in the classical age, ended to dis- linear grid around the normal, which it seeks appear and to constitute a great carceral contin- to return to, and not the ‘extended grid of uum that diffused penitentiary techniques into the non-equivalent and diverse dispositions’ most innocent disciplines, transmitting disciplinary which Garland described (1983, 28: original norms into the very heart of the penal system and placing over the slightest illegality, the smallest emphasis). irregularity, deviation, or anomaly, the threat of If institutions like probation do apply delinquency. (1977: 297) methods that have their origins in the disci- plinary technologies of control over the body, Garland (1985: 31) argued that Foucault like surveillance, corrective training, and overemphasized the continuity between the moments of close examination of its sub- disciplines of the penitentiary, and the full jects, they also and crucially leverage this blown rehabilitative correctional institutions disciplinary control through activating a 28 operating in the 1970s. broader grid of relationships surrounding the In particular the work of Michel Foucault subject in a way that the penitentiary very 31 (1977) has argued, with great influence, that the explicitly chooses not to. It aims at social [modern] form of penality was constructed a integration. If it operates on the body, it is the whole century earlier with the development of body in the natural setting of social life rather the modern prison and its ‘disciplinary’ forms. than in the artificial and abstract space of the He insists that the functions of disciplinary reform and normalization were not ‘added on’ at a later disciplinary institution. These new methods date, but were from the outset an essential aspect drew on a social technology of power over of the prison. In his analysis, the prison is from the bodies of the poor that had been devel- the start a technique of transformation and not oped by charity workers, one based on wield- a punishment; directed at the criminal’s nature ing the normative power social relationships, and not his act … I have begun to demonstrate that, at least for the British case, Foucault’s thesis and none more important than the relation- is incorrect. (1985: 31) ship between the professionalized agent of control and the subject embedded in social Others, including Mathiessen (1983) and life.32 Cohen (1979) argued that 20th-century meas- In short, Foucault was right about the ures represented continued innovation within significance of the disciplinary technology of a disciplinary technology of control; a blur- power in the birth of the prison, but wrong ring of its hard lines and a dispersal of it to have assumed that there was no important throughout society.29 interruption between that transformation Today this debate seems less central and the ‘modern’ penal system that prisoners because of the developments we take up in in the 1970s were rebelling against. Most the next section. Moreover, in arguing about importantly, without fully appreciating the whether the new institutions reflected an distinctive features of the early 20th-century extension of discipline, we may be investing penal institutions that Garland traces in too much in the analytic power of our own Punishment and Welfare, Foucault misunder- terms.30 To the extent that Foucault clearly stood the nature of those contemporary griev- missed (and was not looking for) the penal ances which were, even as he described them turn of the early 20th century our analysis in Discipline and Punish, less about the dis- today benefits greatly from Garland’s work ciplinary nature of the prison, and more about bringing out the distinctive features of penal- its social and psychological dimensions. welfarism. Disciplinary technology is about Drawing on Foucault’s later work, some corrective training of the body. It operates have suggested that these early 20th-century

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innovations might be associated with the is not a panoptic one, and least of all a form ‘bio-political’ technologies of power, ones of population management, it is an ulti- that like insurance, regulation, and welfare mately a dialogic and ethical relationship, or tend to operate on larger groups or whole as Mike Nellis puts it, ‘incentive-based, populations (Foucault, 1978; Smart, 1983; trust-based and threat-based means of gain- Bottoms, 1983: 194–5). Some of the new ing compliance’ (2009: 108).33 penal techniques introduced at the turn of the 20th century are clearly linked to these tech- nologies of control over the body aimed at Social networks and the the problematic of the population, for exam- defective adult ple the eugenic effects of segregating recidi- vists. Anxieties about the population as a If the target of the penitentiary technique direct subject of power, so evident in these is the soul of the prisoner isolated in the programs, associated with immigration in the cellular structure of the prison, the target of USA and the imperial project in Europe, probation is the offender as part of a social clearly defined some of the problems that network that has facilitated their delinquency penal techniques had to help solve (or at and which, with the proper interventions least not make worst). At the same time of the penal agent, became a source for cor- bio-political technologies do not seem to rection. The new penal subject had far greater influence the form or practice of most of the depth and variation than the largely uniform techniques pushed by reformers. individual acted upon by disciplinary prisons A more helpful parallel may to be an which in Bentham’s memorable phrase altogether different kind of social technology worked to ‘grind rogues honest’ (Bentham, that Foucault identified with religion, educa- 1791, quoted in Garland, 1985: 17). The new tion, and generally pastoral institutions, that science of criminology had projected a range is, the care of the subject as a self. of character defects in individuals that led to deviance, delinquency and ultimately [T]echnologies of the self, which permit individu- crime including alcoholism, biological als to effect by their own means or with the degeneration and feeble mindedness. The help of others a certain number of operations on emerging practice and science of social work their own bodies and souls, thoughts, conduct, a way of being, so as to transform themselves in saw bad parenting and unorganized commu- order to attain a certain state of happiness, purity, nities as causing or enhancing these kinds wisdom, perfection, or immortality. (Foucault, of character defects. All of the new tech- 1988: 18) niques of penal power shared a premise that effective crime control required legal author- While disciplinary technologies of power ity to be refined around such specificities involve small groups or individuals exercis- by detailed case knowledge and methods of ing power over larger assemblies through social diagnosis (Richmond, 1919). the use of architectures of confinement and At the center of all of these is the proba- methods of surveillance, and bio-political tion agent, who combines the social worker’s technologies of power involve small groups methods of casework, interviewing and life or individuals exercising power over whole history construction, with the police officers segments of the population through actuar- legal authority (in part) and with the court’s ial and financial methods, probation (and power to punish in the form of incarceration. most of the other early 20th century penal It is true that the probation agent is in some mechanisms) involve power being exer- respects in the position of the hierarchical cised from one individual to another through examiner who looms so large in the discipli- their ongoing relationship. The relationship nary logic of panopticism (Foucault, 1977). between penal subject and probation officer In its strongest sites, and against some of its

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weakest targets, the penal-welfarist system penal reform programs today (as in the post- must have felt very coercive indeed (Simon, Communist transition in Europe). But if it is, 1998). Yet there is little panoptic in the actual on balance, productive to treat the peniten- ability of probation agents to see what the tiary and penal-welfarism as general waves penal subject is up to. To the extent they can of change, the pace and direction of penal make credible their threat of catching the sub- reform since 1980 is far harder to determine; ject in criminal (or better yet, pre-criminal) either because it is still in its early stages, or conduct, it is primarily because of the social because there will not be as common a path institutions in which the penal subject is as in the past.35 already embedded, the family, the school, The USA, one of the leaders in deploying and work (Simon, 1993; Maruna, 1997). The both disciplinary and social technologies probation agent, in the early 20th century of power for earlier waves of reform, is very (and for much of it) is as much a conduit much at the forefront of creating what is from civil society into state legal authority as arguably a new pattern of penal practices he is a bridgehead of state power inside the and objectives that largely abandons penal- community. welfarism in favor of containment and control (Deleuze, 1992; Feeley and Simon, 1992; Garland, 2001a), exclusion (Young, 1999), warehousing (Irwin, 2004) and waste PRECAUTION: PUNISHMENT management (Simon, 1993; Lynch, 1998). AS WASTE MANAGEMENT As with earlier waves of reform, we see IN NEOLIBERALISM both new institutions including the super- max prison (Shalev, 2009), spatial exclusion Talk of penal institutions as technologies of or banishment (Davis, 1990, 1998; Beckett punishment cannot help but understate the and Herbert, 2008) and electronic monitor- variability of reform. Both Discipline and ing (Jones, 2000; Nellis, 2009); and the Punish and The Prison and the Factory reorienting of older institutions, including treated the spread of the penitentiary model mass incarceration prisons (Garland, 2001b; as a global event, although the cases they Gottschalk, 2006; Western, 2006; Gilmore, drew on were less than representative, a 2007; Simon, 2007) and managerialism in problem that has afflicted almost all study of parole and probation into practices of risk penal change ever since. But the penitentiary, management (Cohen, 1985; Bottoms, 1995; and the disciplinary technology of power Simon, 1993). was at work in the penitentiary style prisons While the prison remains at the center was to a large extent a global phenomenon of the power to punish, mass incarceration that followed efforts to modernize penal represents a fundamentally different use of practices from the end of the 18th century the prison than the disciplinary penitentiary in Europe and North America through the or the welfarist correctional institution; and 20th century (as it spreads to Latin America, in many respects marks a more substantial Asia and Africa). The insights both books break with the past than any change since generated by treating the disciplinary fea- the rise of the penitentiary. Scholars of pun- tures of the penitentiary as a generic logic, ishment and society have pointed to a number were well worth the loss of greater attention of distinguishing features of incarceration in to national and subnational variations.34 the era of mass incarceration. The scale of Likewise the social technology of power, incarceration, having remained relatively manifest in reforms that began in England stable in most countries, including the USA, and the United States at the end of the 19th since the late 19th century, has dramatically century, continues even today to shape surged up in the USA, by a factor of more

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than five (Zimring and Hawkins, 1993; Neoliberalism Garland, 2001b; Western, 2006). Like capital punishment on the scaffold, imprisonment The USA is quite clearly the country that was historically an individualized penalty has most embraced the containment approach rather than an automatic sentence for the to punishment,36 while the UK (but primarily conviction of a crime (accept for the most England and Wales) has experienced one serious), and prison sentences themselves of the most significant rises in incarceration were individualized further by the wide- in Europe (Garland, 2001b; Newburn, 2007), spread application of parole release. Under as have the much smaller Northern Irish mass incarceration imprisonment has been and Scottish prison systems as well as that mandated far more generically to whole of the Republic of Ireland (O’Donnell et al., groups or categories (Bottoms, 1983; 2004). This has led some punishment and Mathiesen, 1983; Cohen, 1985; Feeley and society scholars to look to the strong turn Simon, 1992). The penitentiary and its suc- toward a neoliberal political economy by the cessors placed great emphasis on their inter- USA, the UK and other English-speaking nal design and procedures to effectuate countries to account for their concentration beneficial change in prisoners (although in the top ranks of imprisonment growth, often more in design than in delivery). The while the more social democratic and corpo- prisons of mass incarceration are devoted ratist countries of continental Europe have exclusively to the incapacitative premise of thus far resisted it (Cavadino and Dignan, secure containment (Zimring and Hawkins, 2006; Western, 2006; Wacquant, 2009). 1997), and the practice of pure custody, or While one can question the coherence warehousing (Simon, 2000; Wacquant, or uniformity of ‘neoliberalism’ as a new 2009). political and economic order,37 it is plausible This is a pattern that has not emerged that something like the classical pattern of everywhere across the advanced econo- political economic transformation, followed mies of the world. Indeed, the styles and by increasing doubt about the existing penal approaches of contemporary punishment practices and institutions has happened in have been usefully described as ‘volatile and much of the industrialized world. As political contradictory’ (O’Malley, 1999). Large parts leadership has moved away from an expan- of Europe retain relatively stable prison sive welfare state promising more insurance populations (Tonry, 2007) and even in places of one form or another, to more people where the prison population has grown, as (Baker and Simon, 2002), and toward a for instance, in the Netherlands and in the greater emphasis on deregulated markets and Nordic countries, the emphasis remains dis- greater individual responsibility for social tinctly welfarist. In North America, Canada and economic security, the logic of penal- has stayed largely welfarist (Meyer and welfarism, has almost everywhere come into O’Malley, 2005). Even in the USA, some question. The weakening of government states have retained a more substantial commitment to expanding insurance and institutional commitment to rehabilitative welfare made the very premise of penal- programming in prisons, and virtually all welfarism, that the community has greater states have retained the forms of welfare resources of producing correctional change penality, probation, juvenile courts and than the state can produce in prisons, unsus- parole. tainable (Beckett, 1997; Garland, 2001a; Following the insights of both Foucault, Wacquant, 2009). The formation of an under- and Melossi and Pavarinia, we must first look class and a new kind of economically iso- to political economy to establish the horizon lated poverty inside the USA (Wilson, 1987; in which this variation plays out. Simon, 1993; Wacquant, 2009) (and to some

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extent Europe as well) denuded the social Successful new institutions and practices, networks to which welfarism promised to or reorientations of old ones, must fit the reintegrate those engaged in crime or delin- resulting critique of welfarism, but their spe- quent conduct. The extreme reliance of the cific forms depend on available technologies middle class (and the whole consumer econ- for reworking the control of bodies. omy in the USA) on property ownership, in the form of owning their home created a form of unspreadable risk that made Technologies of risk management Americans both more vulnerable and more spatially conscious of crime risk and less Can we describe a new political technology committed to public property of all sorts or set of technologies, at work in the various (schools, city centers, parks, transportation) elements of the new penology, for example, made welfarist forms of penality, especially mass incarceration, spatial exclusion and probation and parole (but also juvenile court electronic monitoring? All of these depend sanctions) seem a direct danger (Davis, 1990; in one way or another on a sorting of penal Simon, 2010). Increased democratization bodies spatially in relation to the risk they made other forms of social control, ranging pose and a great deal of recent scholarship in from mental hospitals to aggressively policed punishment and society has attended closely downtowns, less politically tolerable while to the relationship between contemporary encouraging harsh punishments as a ‘market- penal changes and technologies of risk based’ solution to crime (Harcourt, 2005, (Feeley and Simon, 1992, 1994; O’Malley, 2010). 2010). While it is easy to see how penal- One risk technology, long drawn on by welfarism loses legitimacy in the face of a various governmental institutions is actuarial broader move away from welfarist solutions calculation and prediction. Certain aspects to social problems and calls for more market of contemporary penal practices seem to disciplines (especially on the poor and the implement this actuarialism. Feeley and middle classes), it is more difficult to explain Simon (1992) placed these techniques at the the resulting penal institutions as direct heart of what they called the ‘new penology’. response to these same imperatives. The In this respect, penology seemed to track the growth of the ‘penal state’ and its high fiscal path of other fields, including civil justice costs is rather a direct contradiction of the (Simon, 1987), fire management (O’Malley, premise that the state needs to shrink and 2010: 3) and modern medicine once the very become less coercively present in society. It ideal type of social technology. can be argued that the rhetoric of smaller Like social insurance for work accidents, government is just that, and it disguises a which assumes that casualties are inevita- shift from welfare to penal styles of govern- ble but seeks to reduce their number and ment (Western and Beckett, 1999; Wacquant, severity the new penology seems to assume 2009), or that prison is a way to channel that criminality is largely unchangeable and investment toward preferred segments of instead seeks to reduce the number and society, while disinvesting others (Harcourt, severity of crimes. The target of the new 2010), but while such results may be consist- penology shifts from the discipline of indi- ent with the transformation of political econ- vidual bodies, to the control of whole catego- omy they would have been difficult to predict ries of presumptively high-risk individuals from it. through incapacitative custody. In place of An alternative approach is to view the social technologies for rehabilitating and transformation of political economy as under- reintegrating prisoners, contemporary penal mining the legitimacy of penal-welfarism institutions focus on achieving aggregate and promoting the need for radical reforms. effects, measured through process outputs

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that can be objectified and tracked easily, custody levels, which is the dominant what Bottoms (1995) called managerialism. form of differentiation in new penal order. This suggested, that Foucault’s bio-political Beyond the prison, electronic monitoring technologies of power, which seemed only mar- operates to track the body of penal subjects ginally influential on the formation of penal- in real-time, not to establish process of self- welfarism, might be reaching dominance. discipline, but enforce zones of exclusion, a Yet there is a great deal about the new practice aptly described as the ‘banopticon’ penal culture of containment and control (Nellis, 2009: 113). that does not correspond closely to actuarial As with disciplinary and welfarist practices, technologies of risk assessment. Mass incar- we can find aspects of precautionary technol- ceration is not, in the end, predictively ori- ogy across many institutions remote and near ented, but indeed embraces generalized to the penal field. Industrial risk management rather than selective incapacitation (Zimring from the end of the 19th century, especially and Hawkins, 1997). Also, at its core, insur- the design of machinery and procedures to ance is a form of risk spreading and risk avoid accidents and injuries directly is one sharing, but in combination with spatial arena in which a prudential tinkering with exclusion and electronic monitoring, mass both humans and machines to reduce damage incarceration is aimed at concentrating that done by inevitable errors took shape. In the operates to keep the most troubled individu- 20th century this kind of craft became even als cycling between periods of incarceration more important in the design of plants produc- in which human capital is degenerating and ing or using highly toxic chemicals either as periods of freedom in which former prisoners primary objective or waste (Perrow, 1984). are largely isolated from the economy in The shaping of private property, especially communities with already high concentra- mass private property (Shearing and Stenning, tions of unemployment, drugs, and illegal 1984, 2003), as well as gated communities activity. (Simon, 2007), toward ‘situational crime pre- Thus in addition to the application of actu- vention’ (Von Hirsch et al., 2000) and other arial technologies, the shift to containment forms of ‘target hardening’ (Farrington et al., and control embodies a second kind of risk 1993) aim to allow individual citizens to based technology, one that can be described increase their security from crime risk through as a precautionary technology (Ewald, 2002; personal consumption choices (Gould et al., Simon, 2001). Instead of being borrowed 2010). Schools have introduced harsher disci- from the practices of spreading the routine pline, more control agents and readier recourse risks of industrializing society, this precau- to drug testing and in school detentions in the tionary technology of power has its origins name of keeping students safer (Kupchik and in the experience of catastrophic risks like Ellis, 2007; Hirschfield, 2008). Work places that posed by highly toxic wastes, weapons engage in various kinds of screening designed of mass destruction, or deadly epidemic dis- to exclude higher risk employees or even cus- eases. If actuarialism is abut spreading risk, tomers (Simon, 2007). The precautionary precautionary technologies aim to containing logic, always part of the penal field, has come it to specific locations. The prison has become to foreground in the era of mass incarceration. a place to contain subjects who pose a risk Increasingly it reflects not confidence that of crime. With rare exceptions (e.g. Virginia), penal sanctions alone can create greater indi- sentencing to prison in the USA is not selec- vidual security from crime, but that contain- tive in terms of risk nor actuarial in the ment is what the penal system can do to lengths of time it holds on to bodies. Rather, support these other ways in which citizens actuarialism in the prisons of mass incarcera- have been mobilized to protect themselves tion often follows the commitment to con- from victimization (Garland, 2001a; Simon, tainment, as risk prediction is used to set 2007).

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Two penal practices stand out as exempli- As a fixture in a vastly extended array fying the penal appropriation of precaution- of prisons, the supermax has functioned as ary technology, the supermax prison (Shalev, a point of concentration for techniques that 2009), and the most robust forms of elec- are working on a lesser basis throughout. tronic monitoring, such as satellite tracking As a place to remove those prisoners who (Jones, 2000; Nellis, 2009). Supermax pris- are deemed a threat to the order of the less ons build on the practice of solitary confine- securitized warehousing prisons, the super- ment, which emerged as a part of the practice max provides for the larger prison system a of disciplinary penitentiaries and continued way to control their enlarged populations in to be used as a more select sanction in the he absence of any meaningful internal prison prisons of penal-welfarism. The supermax programming. prison moves from solitary confinement as Electronic monitoring, including its most an individualized and episodic technique to advanced and comprehensive form, satellite a generalized and routine technique with tracking, operates in many respects at the whole prisons designed to keep their entire other end of the spectrum of risk. It is population in solitary confinement. Likewise, designed to enforce spatialized exclusion on many prisoners are there not as a sanction for those deemed low enough risk to be out in a particular disciplinary violation but based public either on pre-trial release, or as part on a prediction (sometimes but not generally of a sentence of parole following imprison- actuarial prediction) that they pose a risk to ment, or on probation as an alternative to guards or other inmates. The supermax does imprisonment. While is often offered as an more than place the prisoner in solitary con- enhancement or aid to probation, as a tech- finement, rather it creates a highly technical nology it operates in very different ways than and computer managed form of custody in probation as the anchor practice for penal- which all contact with other human beings welfarism. In terms that echo and reverse is minimized and subjected to monitoring. David Garland’s (1985) account of the The penal subject of the supermax is viewed shift from Victorian penality (individuation) as a form of unchangeable and extreme risk, to penal-welfarism (individualizing), Mike like that posed by committed terrorist, or a Nellis points out: predatory serial killer. The supermax brings together in a single [Electronic monitoring] individuates - in the setting many of the specific techniques and sense of focusing on the movements of a single, tactics that figure in precautionary technol- embodied human entity - but it does not individu- alise - in the sense of seeking to know a person’s ogy more broadly. It utilizes architecture and inner mental life or to understand (with a view to technical building materials to achieve a high changing) behavior, as probation officers seek to level of physical isolation, not just between do. (2009: 106, original emphasis) the prison and the outside, but throughout the prison. It refrains from disciplining the body While traditional probation sought to of the prisoner, focusing instead on turning change behavior through ‘the periodic the cell into a place of complete containment co-presence of supervisor and supervisee …; and sustainability making assaults on staff or it was via their structured personal encoun- other prisoners physically unlikely. Through ters (and sometimes through the relation- the use of video-cameras and computers, the ship which grew between them) that an supermax constitutes a panoptic gaze over impact on behaviour was effected’, electronic the prisoners, but for the purpose of docu- monitoring seeks to extend the spatial and menting control to address both managerial temporal range of control well beyond what and even human rights objectives, rather than human controls or social relations could normalization. sustain, indeed range replaces relationships

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(Nellis, 2009: 108–9). Instead of creating a High risk groups: monsters matrix of surveillance and influence, elec- and predators tronic monitoring enforces a risk based set of spatial exclusions. At the same time Although precautionary practices, like electronic monitoring is valued as a manage- other penal applications typically acts on the rial tool that can document the perform- bodies of people caught up in the criminal ance up to standards of control agents, and justice system, its effects lie not in the soul protect the human rights interests of the or the penal subject, or in their social rela- penal subject from the abuses of confinement tions, but on spatial zones. Placing some or the degradation possible in other risk penal subjects in secured confinement, and management tools, such as public notifica- others in an electronic prison of electronic tion (Nellis, 2009: 122). Finally, electronic monitoring, is intended to keep them out monitoring operates in a systemic relation- of certain neighborhoods and locked into ship to prison, dependent on the demand to others. The result is to maintain a risk hierar- extend containment beyond the limits of the chy of spaces from desirable safe suburbs, prison. whose own gates and control devices are Even as a rough sketch of recent years enhanced by keeping the most determined this does not account for much of what is threats out of circulation altogether, to the going on in Europe, in Russia (Piacentini, dangerous inner city neighborhoods which 2004), or in China, for example, where pun- lacking the ‘ghettos’ original wall and locked ishment remains generally tied to penal gate, now sports electronic and legal zones welfare or disciplinary technologies and designed to keep penal subjects inside (Davis, where the relative scale of punishment in 1998). society and as a portion of governmental The penal subject is defined as a source power more broadly remains closer to the of risk, at the extreme a relentless monster norms of the 20th century. In characterizing or predator who is driven to rape, kill or the leading technology of power for shaping destroy. The model for this came not from the penal field in our time as containment, science, but from the nightmare factories I am placing the American (and to a much of Hollywood, which quickly turned the lesser degree the UK) model at the forefront. alarming serial killers of the USA in the The logic of penal change in the USA has 1970s and 1980s into a ubiquitous threat to been driven in large part not by the fact American homes. The monster is not a defec- that crime control as a broader strategy tive person in the sense of someone who has (including policing and adjudication as diverged from the social institutions and rela- well as punishing) has in the USA become tions that would bring him or her into con- itself a more important technology of power formity with law, but rather someone created for government (Scheingold, 1992; Beckett, by aberration, who cannot be changed and 1999; Garland, 2001a; Gottschalk, 2006; may not be discerned in advance. Violent Simon, 2007; Wacquant, 2009). Thus while crime, especially gun crime, and above all in the early 20th century, probation agents murder, marks a penal subject as a monster might use the common or public school as and the tendency of US law is to seek life- a governing framework in which its power time incapacitation without the possibility of over the penal subject could be more parole (Dolovich, 2011). But even property effectively distributed and exercised, today or public order crimes, and especially drug schools in the USA incorporate police and crimes, may indicate that the person con- probation officers as working part of their victed has the aberration that will make them internal discipline (Simon, 2007; Hirschfield, a predator, which creates an enduring pres- 2008). sure to lengthen sentences for non-violent

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crime and to return prisoners to incarceration technology of power, and to suggest how for even technical violations of their release they have been and might be applied to conditions. other phases of penal evolution. These works, Whether, to what degree, and how, this which share a great deal in common, helped precautionary penality so clear in America to revitalize punishment and society as an might become predominant in Europe and academic field within sociology, criminology other places is a subject of considerable and political science. There has been a great debate (di Giorgi, 2006; Jones and Newburn, deal of criticism of the failings of this 2006; Wacquant, 2009). Supermax-style approach, especially Foucault’s use of it. In prisons are comparatively rare outside the the remaining part of this chapter I will sug- USA (whether because of the cost or because gest why it should remain in the tool kits of of human rights objections), while electronic contemporary students of punishment and monitoring has been more fully embraced society, regardless of what theories guide in the UK than in the USA. Fear of serial them. killers and other penal ‘monsters’ is readily To study penal change by examining the apparent in Europe, even while this fear is way new technologies of power play out in to some extent balanced by checks on penal the reformation of penal institutions is not populism overall. In Europe there are signifi- to assume that punishment is only, or even cant competitors to containment for any primarily about the production of political possible recasting of the power to punish. power or social control. Punishment in any Human rights is clearly an important source society serves many functions; to assuage for the development of European penal the victims and onlookers of certain crimes, techniques in way that it has not in the USA especially violent crime, to validate social (Van Zyl Smit and Snacken, 2009). In addi- authority, to incapacitate or control some tion to preventing the predictable tilt toward people and to intimidate others. It is carried degrading prisoners that the containment out by complicated organizations that have strategy has involved (Whitman, 2003), their own histories, values, and structures. human rights discourse has reached well into Because Foucault and Melossi and Pavarini practice and research of both national and operated in a largely Marxist intellectual European-wide correctional administrations. context,38 they emphasized the role of pun- Indeed human rights, with its well developed ishment in enforcing class hegemony in tool box of investigatory and accountability modern society, but the tool kit is not limited techniques, represents its own kind of tech- to extending a Marxist political economy. nology with broad application to the penal Whatever else punishment does beyond field. Likewise, the well noted importance social control, it does so dependent on the fit of ‘managerialism’ in European penality between penal practices and extended net- represents the application of another kind works of acting on things. If punishments are of technology, with its origins in business to satisfy victims and community members administration, to the penal field. that they are seriously capable of holding the convicted accountable for their crimes, they cannot be a singular or aberrational practice that has no resonance in the larger world LOOKING BEYOND THE WASTELAND (that is one problem with capital punishment is that it has so little company in the social The aim of this chapter was to outline some world as a way we deal with other people). of the significant analytic methods of The disciplines, and in the 20th century, the Foucault’s (1977) and Melossi and Pavarini’s family of techniques, knowledges and strate- (1981) books on the emergence of the peni- gies that some have called ‘welfarism’ tentiary style prison, with its disciplinary (Garland, 1985) or ‘the social’ (Donzelot, 1979),

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were becoming familiar ways of organizing penal institutions is likely to depend not just social action before they were launched suc- on the problematization of precautionary cessfully in the penal field. Today a precau- technology, but also on the new technologies tionary approach to reformulating penality of power over the body that reformers are been successful in large part because it builds able to draw into the penal field. on a precautionary logic widely dispersed societies experiencing the late modern con- cern with catastrophic risks (Ewald, 2002). It does not follow from this that penal ACKNOWLEDGEMENTS practices are best explained as ways of exer- cising power over people as individuals, or Thanks to David Garland, Richard Jones, as whole classes. Indeed, the empirical study Dario Melossi and Richard Sparks for their of penal practices in all three eras leads to comments on earlier drafts of this chapter. the conclusion that punishment rarely works as planned. Disciplinary rituals end up anger- ing and degrading those subjected to them, but regularly fail to produce an internalized NOTES commitment to self-discipline (other than that involved in behaving strategically to 1 I will refer throughout to first English translation subvert discipline).39 Social welfare agents dates but for the present discussion it is helpful tracking criminal involvement, after the fact, to note the actual dates. Discipline and Punish is a translation by Alan Sheridan of Surveiller et punir: often with the result of cycling the subject Naissance de la Prison, Editions Galimard 1975. back through the penal system it was sup- 2 A translation by Helen Gyntis of Carcere e fab- posed to move him beyond (Simon, 1993). brica: Alle origini del sistema penitenziario, 1977. It is only the strong social confidence in a 3 Both books were indebted to Rusche and technology of power that can account for the Kirchheimer’s Punishment & Social Structure (1939), which might have reignited the field, had it not tolerance that societies have for penal failure, been published in the midst of the Second World one that disappears very quickly indeed War and further hidden by the Cold War which cast when that confidence wanes (Allen, 1981). its Marxist authors into semi-invisibility in the liberal By the same token contemporary precau- West. tionary punishments, such as the mass incar- 4 This was missed by many of the other important sites of revitalization of the social study of crime and ceration practiced in the USA and to some its control in the 1970s, which focused more on degree in the UK, has quite mixed implica- ideas, identities, and ideologies. tions for the reduction of crime (Clear, 2007; 5 Foucault used the term political technology and Zimring, 2007). Its endurance will have technology of power interchangeably. For example, much more to do with the broader social he describes the soul as an effect of a ‘certain technol- ogy of power over the body,’ associated with punish- acceptance of precautionary power in broader ment through imprisonment (Foucault, 1977: 29). society. As with earlier waves of penal 6 This is very much Foucault’s strategy in Discipline change, the breakdown of this acceptance and Punish where he discusses not one, but three will be driven in large part by changes in quite distinct technologies of power. political economy, which will raise new 7 Melossi and Pavarini read Foucault’s book in French in 1976 after they had largely completed their problems about the costs of precautionary manuscript, but managed to add some references to punishment. Indeed the global economic it in their original book and a longer response in the crisis of 2008, which has continued to depress English translation in 1981. economic life in the USA and large parts 8 Which is essentially how Garland (1990) treats of Europe, has accelerated growing criticism it in his influential Punishment and Modern Society. 9 Punishment and Social Structure was first pub- of mass incarceration, although it is far from lished in English in 1939, after being heavily edited clear how this will play out (Gottschalk, by Kirchheimer to tone down its Marxism for US 2010). However, the actual shape of reformed readers (Melossi, 2003). The book was republished in

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1968, which brought it the attention of a new gen- more developed and critical response. Although my eration of sociologists of punishment like Melossi account here has tended to emphasize the similari- and Pavarini. A new edition was published in 2003. ties between the two projects, but there as the fol- 10 This is perhaps the most important difference lowing quote suggests there were also important with a third remarkably similar book that was pub- divergences. lished at nearly the same time (Ignatieff 1979). 20 The problematics of the scaffold as a technol- Michael Ignatieff’s analysis of the rise of the prison, ogy of power was quite independently the focus of discussed discipline and penal reform, but treated it a group of historians lead by the late E.P. Thompson much more as a problem of ideology. who were studying the role of criminal law and pun- 11 The elaborate execution rituals of the scaffold, ishment in the consolidation of the Whig regime as described by Foucault, and others, was far from during the 18th century, see Thompson (1975) and typical, but it exemplified a whole style of punish- Hay et al. (1975). Thompson and his students were ment which emphasized the public and degrading also working to revitalize the Marxist approach to treatment of the body, including branding, mutila- studying the history of punishment and develop a tion, or exposure (Spierenburg, 1984). research strategy that is remarkably similar to the 12 The status of being outlawed and subject to punishment as political technology approach. There the severe punishments due ‘felons’ at English and seems to have been little direct influence between colonial American common law and the equivalent in historians around Thompson and either Foucault continental 18th-century procedure generally did not or Melossi and Pavarini. Because the latter focused befall people whom the local community including on the scaffold regime and not the birth of the prison its hierarchy viewed as somebody who should remain as such, this chapter does not treat them at any a member of the community (Simon, 1993). further length, but their contributions ought to be 13 Neither Foucault nor Melossi and Pavarini seen as part of this moment in which the history of were breaking entirely new ground in focusing on punishment was ‘lit up’, as it were, through atten- disciplinary practices as an important technology in tion to punishment as a technology of power. 19th-century developments. Max Weber (1978) had 21 Indeed, it was this interiorizing project that discussed disciplinary techniques as had historian Foucault believed to be undergoing a crisis in the E.P. Thompson (1967). 1970s, around the problem of prisoners’ rights. 14 By which I take him to mean European and 22 It is not surprising than, that a good deal of North American societies from the at least the late attention since (especially to Foucault’s book) has 18th century right through to those same societies (as gone into trying to decide how far to extend the well as many others shaped by European colonialism). disciplinary concept to explain 20th-century changes 15 Melossi and Pavarini are quick to recognize the in penality (Bottoms, 1983; Cohen, 1985; Mathiessen, parallel between Foucault’s insights and their own 1983; Feeley and Simon, 1992). while returning to what they conceive as a more 23 Penality is a term introduced by Garland adequate but still Marxist political economy. (1985) to describe the totality of institutions, prac- ‘However, what is presented to us as the ‘political tices and discourses that surround the power to economy of the body [in Foucault] is “political punish. economy” tout court; it is already locked in the con- 24 Of course one should not take the endurance cept of labour-power’ (1981: 41, original emphasis). of a particular institution to suggest that its social 16 This is consistent with his later discussion meaning and role are the same (Bottoms, 1983). of the importance of the ‘specific intellectual’, for 25 As John Sutton (1988) points out, this term example, Robert Oppenheimer rather than Albert originally meant simply ‘work on a case’ before it Einstein. See Foucault, 1984. was blown up into a technique during the rise of 17 And somewhat more mysteriously, ‘[The soul social work as an academic and policy field (Richmond, is] the present correlative of a certain technology of 1906; Garland, 1985). This is a good example of power over the body’ (1977: 29). Foucault’s (1977) admonition to look at those dis- 18 Of course both Durkheim and Rusche and courses at the margins of official respectability for Kirchheimer had presentist concerns that were hardly the ideas that pull together a set of practices into a hidden, militarism and French anti-semitism/national- technology of power including the earlier and more ist racism for Durkheim and National Socialism and practical meanings behind terms that have been fascism for Rusche and Kirchheimer, but neither propelled to the higher stratospheres of prestige placed it near the center of their analytic method. precisely by the success of this pulling together proc- 19 Melossi and Pavarini became aware of ess. Tom Baker’s (1996) analysis of ‘genealogy of Foucault’s work as they were completing the Italian moral hazard’, a concept we will discuss in the next first edition of their book and included only a few section is another good example of a piece of knowl- complementary references. Two years later, for the edge production that gravitates from a construct of publication of their book in English, they provided a based on the categories of insurance underwriters

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toward formal theoretical coherence as it rockets work in the public service, was dangerous and up in prestige within the social sciences and as a undermined the potential to reform. policy driving term. 32 The parole or probation officer, and their style 26 By programs Garland means distinct schemes of relating to individuals on their ‘caseload’ has ever of social action, each with distinctive discursive and since been a central preoccupation of criminological technical resources as well as organizational bases research (Simon, 1993; Lynch, 1998; Nellis, 2009). and social bases of support (1985: 74). 33 Alison Liebling suggests that this relational 27 It is important to recognize that existing insti- model also shaped the logic of control inside prisons, tutions, especially the prison, and the disciplinary a strategy she argues may be coming to an end technology of power over the body, remained under conditions to parallel some of what we embedded in the penal field and an important source describe in the next section. of conflict and resistance to the construction of new 34 Of course attending to variations with those institutions based on welfarist or social technology. insights in mind is perhaps the best use of them 28 But surely Garland overemphasizes the (Bright, 1996; Meranze, 1996). differences between Foucault’s analysis and his. 35 Perhaps because the basic political economy is To be sure, Foucault seemed to view the elaboration diverging (more on that shortly). of individualizing penal techniques associated with 36 Even within the USA there is a considerable the turn of the 20th century as immanent within variation at the state level, which control the largest the disciplinary penitentiary, and while this misses portion of prisoners. While imprisonment rates have the distinctive technologies of power at work in the grown significantly since the mid-1970s almost eve- latter period, it is not altogether inconsistent with rywhere (with a national average of 500 percent), Garland’s own analysis to see continuities between some states have kept growth to far more modest the two (in the role of reform for instance). The reaches and retained a more welfarist emphasis in panoptic prison and the penitentiary clearly and punishment, while others have grown dramatically unambiguously see themselves as ‘techniques of and embraced containment in a totalizing way transformation’ even if that objective was played (Lynch, 2009; Simon, forthcoming). down in favor of retribution and deterrence during 37 This movement, sometimes described as ‘neo- the Victorian era in Britain. Nor does Foucault assume liberalism’ (Harvey, 2007) or ‘advanced liberalism’ that the penitentiary technique is already informed (Rose, 1999) includes a lot of different changes in by a positivist criminological knowledge of offenders, governance including less risk spreading and thus indeed he seems to suggest that it is the disciplinary more economic risk for the middle classes, less secu- prison that gives rise to criminological knowledge, rity of any kind for the working poor and those a position quite consistent with the story Garland without employment at all, less regulation of con- tells in Punishment and Welfare. And indeed, Garland sumer markets (and thus more risk to everyone). sees political and ideological forces as constraining 38 Foucault is more often thought of as a critic of the potentially individuating logic of the disciplinary French Marxism, but he is quite clear in Discipline prison (1985: 32). and Punish itself that he is building on the insights 29 As Foucault himself had suggested at the of Rusche and Kirchheimer’s unabashedly Marxist end of Discipline and Punish. approach and that he views the formation of capital- 30 My own account of the penal reforms of ism as the primary horizon in which the disciplinary the late 19th and early 20th centuries also fails technology of power was being worked into refor- to distinguish the distinctive technologies of power mulated penal practices in the 19th century. at work in penal mechanisms like probation and 39 Jimmy Boyle’s (1977) memoir of his multiple parole. See Simon (1993: 44–5), discussing discipli- incarcerations in youth and adult prisons during nary nature of parole. There I suggest that new the 1960s captures both the total failure of discipli- techniques, emphasizing therapeutic interventions, nary punishment and its tremendous endurance emerged only after the Second World War (see historically. Simon, 1993: 68). While it may be true that much of the real work of parole remained oriented toward linking released prisoners to the work force, at least in California, this still ignores the distinctive REFERENCES technologies of power at work in the larger society at the turn of the 20th century that made the promo- tion of reforms like parole and probation viable. Allen, Francis (1981) The Decline of the Rehabilitative 31 Michael Meranze (1996) shows how the Ideal: Penal Policy and Social Purpose. 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