Fracturing the penal state: State actors and the role of conflict in penal change
| DOI | 10.1177/1362480617724829 |
| Date | 01 November 2017 |
| Published date | 01 November 2017 |
| Subject Matter | Articles |
https://doi.org/10.1177/1362480617724829
Theoretical Criminology
2017, Vol. 21(4) 422 –440
© The Author(s) 2017
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DOI: 10.1177/1362480617724829
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Fracturing the penal state:
State actors and the role of
conflict in penal change
Ashley Rubin
University of Toronto-Mississauga, Canada
Michelle S Phelps
University of Minnesota, USA
Abstract
The concept of a penal or carceral state has quickly become a staple in punishment and
criminal justice literatures. However, the concept, which suffers from a proliferation of
meanings and is frequently undefined, gives readers the impression that there is a single,
unified, and actor-less state responsible for punishment. This contradicts the thrust of
recent punishment literature, which emphasizes fragmentation, variegation, and constant
conflict across the actors and institutions that shape penal policy and practice. Using
a case study of late-century Michigan, this article develops an analytical approach that
fractures the penal state. We demonstrate that the penal state represents a messy, often
conflicted amalgamation of the various branches and actors in charge of punishment,
who resist the aims and policies sought by their fellow state actors. Ultimately, we argue
that fracture is itself a variable that scholars must measure empirically and incorporate
into their accounts of penal change.
Keywords
Criminal justice, penal policy, politics, punishment, punishment and society, state
Corresponding author:
Ashley Rubin, Department of Sociology, University of Toronto-Mississauga, William G. Davis Building, 3359
Mississauga Road, Mississauga, ON L5L 1C6, Canada.
Email: ashley.rubin@utoronto.ca
724829TCR0010.1177/1362480617724829Theoretical CriminologyRubin and Phelps
research-article2017
Article
Rubin and Phelps 423
Introduction
Since the inception of punishment and society as a field of study, the role of the state in
creating and enacting penal law and policy has been an animating focus. Indeed, the role
of politics and governance has been perhaps the most robust variable in explaining recent
penal change (e.g. Barker, 2009; Beckett, 1997; Miller, 2008). Reflecting this focus,
scholars have developed two inter-related concepts—the “penal state” and “carceral
state”—to discuss shifts in punishment. Yet these terms are rarely precisely defined
(Garland, 2013), instead serving as shorthand for the cumbersome criminal justice sys-
tem, mass incarceration, the punitive turn, or normative corrections nomenclature. Those
scholars who define the term often rely on divergent understandings that reflect particu-
lar assemblages of penal actors, policies, practices, and institutions that collectively pro-
duce punishment. Still other researchers use the term to signal the transition away from
a penal-welfarist model of governance (the “welfare state”).
In this article, we interrogate the concept of the penal/carceral state and its utility for
penal scholars, illuminating several important problems with the terminology. First, cas-
ual usage of the penal state concept and conflicting definitions have eroded its analytical
utility. Second, treating penality and penal actors as a coherent, unified entity—as
implied by the definite article in the penal state—overlooks recent punishment and soci-
ety scholarship that highlights the fragmentation, variation, and contestation within penal
power, policy, and decision making.
We first review the development and contemporary usages of the penal and carceral
state concepts, critiquing many of the prevailing assumptions behind the terminology.
Then we develop an analytical approach to fracture the penal state, highlighting the
splintered nature of governance structures. We argue that rather than a singular entity, the
state is a messy amalgamation of political, legal, and bureaucratic actors, all with their
own interests and perspectives. Rather than assuming perennial consensus, we argue
scholars must empirically measure conflict among those actors and groups that constitute
the penal state.
To illustrate our approach, we turn to a brief case study of two periods in late-century
Michigan (focusing on the early penal build-up and post-2000 reform efforts). We map
conflict between the various state actors shaping punishment (particularly prison and
community supervision) and show how these struggles produce messy patterns of conti-
nuity and change over time. Notably, this same pattern of internal state conflict is central
to many accounts of mass penal control’s development, but is obscured by vague refer-
ences to a penal state. To conclude, we argue that future research should explicitly break
up the penal state into its constituent actors and empirically examine the level of conflict
among them in order to better understand penal change.
The rise of the penal state concept
The penal state and carceral state concepts coalesced in the late 1990s and early 2000s.1
Use of both terms has increased dramatically, becoming staples of the contemporary
punishment and society literature. These terms have spread beyond interdisciplinary
journals for punishment studies to law and society (e.g. Comfort, 2008; Gottschalk,
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