David Hayes, Confronting Penal Excess
| Author | Harry Annison |
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | http://doi.org/10.1177/1462474520933066 |
| Subject Matter | Book Reviews |
narrative deserves a place in the libraries of historians, law and society scholars,
and criminologists alike.
Alex Tepperman
University of South Carolina Upstate, USA
ORCID iD
Alex Tepperman https://orcid.org/0000-0001-9934-7052
David Hayes, Confronting Penal Excess, Hart Publishing: Oxford, 2019; 238
pp., ISBN: 9781509917983, £55.00 (hbk)
In Confronting Penal Excess, David Hayes argues that retributive penal theory in
English-speaking liberal democracies has failed: it has at best not resisted, and at
worst (perhaps unwittingly) abetted, the waves of mass incarceration and mass
supervision – the increasing illiberalism – that have characterised the growth of the
penal state over recent decades. Nonetheless, Hayes seeks to re-shape and defend
‘penal minimalism as a liberal and democratic public good’ (p9) and to propose a
revised form of retributive penal theory as one means by which to pursue this.
He therefore seeks, in this book, both to analyse past failings (and he focuses
primarily on England and Wales) and, from this, to develop a theory that he terms
‘late retributivism’, which he argues is better equipped successfully to achieve (or at
least come closer towards) the goal of penal minimalism.
Hayes’ careful delineating of the content and meaning of ‘penal excess’ in
Chapter Two is a valuable service. He casts it as relating to the size of the penal
state (bringing to mind debates regarding ‘mass punishment’, and so on) and the
shape of the penal state (its uneven impact on society, connecting with extant
concepts such as ‘punishing the poor’). Chapter Three underpins Hayes’ central
analytical claim, that while not being fundamentally flawed at a theoretical level,
retributive theories ‘have failed to deliver on the political promise that they can
restrain the penal State’ (p2). His examination of retributivist arguments, their
strengths and weaknesses, in particular those that emerged from the 1980s
onwards, is detailed and compelling.
There remains, nonetheless, something in Hayes’ way of framing his question,
and the underlying view that retributivism (and specific retributivists) failed ‘to
prevent penal excess’ (p70) that in my view merits further interrogation. My points
centre on ‘politics’, in different forms. At perhaps the most straightforward level,
one might respond that the blame-attribution is unfair: indeed Hayes notes
approvingly Lacey and Pickard’s (2015) observation that all penal theories are
vulnerable to wider institutional change (p80). Put by way of contemporary anal-
ogy, one might query whether it would be appropriate to cast public health officials
Book reviews 283
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