Abstract
Theorizing penal order and theoretical advancement on punishment has long been a concern for criminological scholarship. Not long ago, in the piece ‘Criminal Justice Theory: It’s Time to Ask Why’, Kraska and Brent (2011) lament the theoretical deficits of criminal justice compared with the study of crime causation and outline eight theoretical approaches to aid understanding of criminal justice. The sociology of punishment has made remarkable advances over the past two decades and produced an interdisciplinary and sizable volume of literature on the nature of punishment and penal change as well as their social forms, functions, and foundations (Garland, 2018). Now the theoretical enterprise of studying punishment and criminal justice is continuing to evolve with the release of a book by Goodman, Page, and Phelps, Breaking the Pendulum: The Long Struggle over Criminal Justice, which aims to propose a different, but meticulously refined, approach to making sense of criminal justice and penal order.
As the book title boldly suggests, the authors seek to revise the widely embraced pendulum model of criminal justice that has been represented in prestigious legal scholar William J. Stuntz’s posthumously published book, The Collapse of American Criminal Justice. They argue that the pendulum metaphor for criminal justice has limitations in capturing and grasping criminal justice, thereby distorting the nature and process of penal change. It is quite problematic because the pendular logic assumes that one criminal justice regime is replaced wholesale with another (rupture); presents the criminal justice model as moving back and forth without contingency, variation, and struggle (mechanical); and tends to treat American criminal justice as a monolithic, unified ‘system’ (homogeneity) (p. 7). In doing so, the ‘pendulum swing’ (or as I interpret as the ‘either-or’ way of thinking) may obscure the real complexity and nuance of criminal justice operations and thus inaccurately reveals the nature of penal order over history.
As such, Goodman, Page, and Phelps propose an alternative approach to interpreting penal dynamics in the United States, one they term as ‘an agonistic perspective’. Theoretically, neither do they attempt to develop grand narratives on penal changes nor do they focus on penal policies and practices of specific locales. Rather, they provide mid-level accounts of ‘how and why penal practices change in given times and places through the lens of contestation’ (p. 15). Building on the logic of Bourdieu’s field theory, this perspective posits that the inherent engine of penal change lies in the contestation and struggle by various actors and groups with different power to wield. As the first axiom (as well as the pillar of their perspective), struggling and contentious activities surrounding criminal justice constitute the penal field and prompt penal transformations over American history. Then, the second axiom suggests the struggle over punishment is a long-term, laborious, and sometimes tremendously symbolic process that leads to uncertain and unsettling penal outcomes, making consensus over penal orientations unrealistic (p. 13). It should be noted that the dominance of one penal orientation and outcome does not ordain the disappearance or demise of other orientations and processes; they may become subordinate and await next round of contestation and struggle, albeit their existence is sometimes less visible or recognizable. Finally, they specify their third axiom of the agonistic perspective by incorporating the broader social context into the framework, asserting that ‘large-scale trends in economy, politics, social sentiments, intergroup relations, demographics, and crime affect (or condition) – but do not determine – struggles over punishment and, ultimately, penal outcomes’ (p. 13). That is, macro-level, social structural patterns and trends only have effects on the penal field until they work, or have to be filtered, through internally established (but not impossible to alter) logics of penal fields. Therefore, as their term ‘plate tectonics’ suggests, the perspective emphasizes how criminal justice needs to be understood as a social field of multiple levels, terrains, dimensions, orientations, players, and outcomes spreading in American society and diffusing across American history. The field’s configuration, scope, function, and meaning are not always fixed or permanent but subject to transformations and reconstructions by constant contestations and struggles over time.
After claiming their research objective and proposing their alternative perspective in Chapter 1, they further illustrate (and practice) the perspective from Chapter 2 to Chapter 5 by selecting pertinent cases and histories on American penal dynamics. Almost covering the whole American criminal justice history, their scope of empirical analysis spans from the 1800s when the ‘penitentiary ideal’ originated and developed (Chapter 2), to the Gilded Age and Progressive Era when ‘new penology’ and ‘progressive’ punishment came into being (Chapter 3), to the period after the Second World War when ‘correctionalist’ criminal justice dominated penal discourse and practice (Chapter 4), to the late 20th century when we had witnessed the rise of mass imprisonment and the decline (but not demise) of rehabilitation (Chapter 5), and to the early 21st century when recent penal reform efforts were discussed and introduced due to various economic and moral pressures to maintain the world’s largest carceral state (Chapter 5). Admittedly, it is the vivid and compelling description and analysis of how American criminal justice development unfolded over history that injects ‘flesh and blood’ into their theoretical skeleton.
This book is more than a proposition for an alternative approach to understanding and explaining criminal justice and penal change with rich, extensive empirical examples. This book motivates researchers to deeply contemplate the nature of penal dynamics and possibly identify issues that others may have not discerned, mischaracterized, or misinterpreted. For example, criminal justice researchers tend to focus on identifying and explaining the most dramatic change or rupture in penal history (i.e. the ‘punitive turn’ and the rise of mass incarceration in late 20th century) or the periods in which the penal field appears settled. As a result, the spaces in between may remain under-examined or go unnoticed (p. 135). Bridging the gap and including something lost out to analysis may help understand how shifts in macro, social structural contexts create strategic opportunities for different actors and how those actors may differentially react and exert their influences on penal outcomes. In addition to investigating dominant themes in penal fields, researchers need to pay attention to the concurrence of social, economic, and political processes and penal (and non-penal) processes and outcomes in various periods while also identifying and mapping the subordinate side of penal fields (p. 137).
While the book has advanced the understanding of American penal development, particularly its operative mechanism, I argue researchers benefit more from the agonistic perspective, if further conceiving the struggle and contestation over criminal justice as a social construct with varying modes, intensity, and social consequences.
First, the intensity of struggle over criminal justice may be particularly salient in the United States and across American history perhaps due to America’s distinctive, institutional arrangement of democracy and policy-making structures and processes (pp. 10–13). Taking a comparative perspective, I argue the intensity and mode of struggle may take on different landscapes in different contexts. The struggle over criminal justice itself is not a given but context-sensitive product. The intensity and mode of struggle may be significantly shaped by political regimes and cultural traditions of different jurisdictions. As such, in addition to the struggle element of constructing criminal justice that emphasizes fierce competition and compromise, researchers may attend to other ways of manufacturing criminal justice, especially in countries with a relatively less intensive but a more negotiated or cooperative character of criminal justice policy making (e.g. China).
Second, racial and ethnic critiques of the American penal system have long had a significant voice in public and academic discussions (Alexander, 2012); however, its logics may still remain puzzling and debatable. How does the agonistic perspective engage in the conversation and aid understanding of the racial and ethnic dimensions of American criminal justice? How can we understand the long struggle over criminal justice is constantly related to racial and ethnic subordination, and why has this struggle and contestation not produced desirable penal outcomes that promote justice? Answering those questions may shed light on the nature of American penal power, especially how the exercise of penal power is related to racial and ethnic structure throughout American history. It entails more than an understanding of the struggle process itself. The nature and effect of the struggle over criminal justice must be understood as well. For instance, Schoenfeld (2010) illustrates the point by examining the consequences of prison conditions litigation. If understood as a form of struggle by prison inmates against oppressive state penal power, the effect has been a surprisingly escalated mass incarceration and expanded use of penal power in Florida. While it is important to understand criminal justice as a social field of long struggles and contestations, it is also productive to identify and examine mechanisms and processes through which constant struggles over criminal justice are associated with the racial and ethnic order in the United States and they constitute each other. The third axiom may inform the answer. Indeed, examining those questions may require researchers to situate the penal dynamics in broader questions about the state-and-society relationship and the social ordering process (albeit the struggle is an important part of them).
These questions aside, Goodman, Page, and Phelps have done a wonderful job refining current accounts of penal transformations during the late 20th century and making a theoretical advance in criminal justice scholarship. Meanwhile, it is an encouragement for those whose reform efforts have lost out during a particular period because it does not necessarily mean a total failure or their efforts are in vain; rather, they should keep fighting in the penal field. This book is highly recommended for those who are interested in not only comprehending criminal justice policies and practices and their social and temporal logics but also for those involved in promoting reforms in criminal justice.