Progressive penality as performance
| Published date | 01 September 2023 |
| Author | Jamie Buchan,Fergus McNeill |
| Date | 01 September 2023 |
| DOI | http://doi.org/10.1111/hojo.12516 |
Received: 4 March 2022 Accepted: 10 August 2022
DOI: 10.1111/ho jo.12516
ORIGINAL ARTICLE
Progressive penality as performance
Jamie Buchan1Fergus McNeill2
1Jamie Buchan is Lecturer in
Criminology, Edinburgh Napier
University
2Fergus McNeill is Professor of
Criminology and Social Work, University
of Glasgow
Correspondence
Jamie Buchan, Lecturer in Criminology,
Edinburgh Napier University.
Email: j.buchan@napier.ac.uk
Funding information
University of Edinburgh
Abstract
Scotland’s prison population remains stubbornly high
despite reforms to sentencing and community penalties
(most recently in 2016). Seeking to advance the debate
on punishment in Scotland, we use empirical data to
support a novel theoretical synthesis of the ‘agonis-
tic framework’ and ‘performative regulation’. We argue
that these reforms appear oriented towards decarcera-
tion, without substantively engaging with the drivers of
imprisonment, and hence exemplify the ‘performative’
nature of much Scottish penal policy.The ‘performance’
is shaped by countervailing political constraints on the
Scottish Nationalist government, amid continued debate
over independence – but truly progressive penal pol-
icy requires radical and substantive responses to the
problems that punishment seeks to address.
KEYWORDS
agonistic framework, community justice, community penalties,
penal field, penal policy, performative regulation, probation,
Scotland
1 INTRODUCTION
In terms of its penal field (Page, 2013), Scotland has been described both as an anachronism and
as a paradox. The anachronism rests in the apparent durability of a penal-welfarist ethos long
into late modernity (McNeill, 2015). In some respects at least, this contrasts with analyses of the
emergence of a ‘culture of control’ (Garland, 2001) or ‘a new punitiveness’ (Pratt et al., 2005)in
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or
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© 2023 The Authors. The Howard Journalof Crime and Justice published by Howard League and John Wiley & Sons Ltd.
Howard J. Crim. Justice. 2023;62:325–340. wileyonlinelibrary.com/journal/hojo 325
326 THE HOWARDJOURNAL OF CRIME AND JUSTICE
some other Westernjurisdictions, notably Scotland’s nearest neighbour, England and Wales.1The
paradox, however,comes into sharp focus when scholars analyse the gap between penal-welfarist
rhetoric and punitive practices; thus, for example, while Scottish penal policy has sustained a
commitment to penal reductionism for much of the last 120 years, Scotland today has the highest
pro rata total correctional population in Western Europe (i.e., the number of people currently
either incarcerated or under penal supervision in the community,whether as part of community
penalties or after imprisonment) (Aebi & Hashimoto, 2018; McNeill, 2018;). This led one of our
colleagues, Sarah Armstrong, pithily to dub Scotland as ‘the Texas of Europe’.
In an effort to better understand the failure of penal reductionism in Scotland, in this article we
aim to draw together two conceptual developments: one from our own field, and one from a quite
different area of criminological enquiry. The first of these is the ‘agonistic perspective’ on penal
change outlined in Goodman, Page & Phelps’s (2017) book, Breaking the pendulum. The second
is the concept of ‘performative regulation’ developed by Mackenzie & Green (2008) in their study
of efforts to regulate the trade in illicit antiquities.
The ‘agonistic framework’ advanced by Goodman, Page & Phelps (2015, 2017) draws on Bour-
dieusian analyses of penal change. The three ‘axioms’ of the agonistic framework emphasise the
role of constant but often covert struggle in the penal field. They argue, first, that ‘[p]enal develop-
ment is the product of struggle between actors with different types and amounts of power’; second,
that ‘[c]ontestation over how (and who) to punish is constant; consensus over penal orientations
is illusory’; and, third, that ‘[l]arge-scale trends in the economy, politics, social sentiments, inter-
group relations, demographics and crime affect (or condition) – but do not determine – struggles
over punishment and, ultimately, penal outcomes’ (Goodman, Page & Phelps, 2017,pp.8–13).
While originally focused on the development of criminal justice in the USA, and particularly
California, the agonistic framework – with its emphasis on hidden political conflict and the role of
emerging professions and civil society associations – has more recently been applied to the history
of probation in Scotland (McNeill, 2019).
The agonistic framework tends to emphasise struggles that substantively concern penal issues
– what punishment should be or do, for example, the conflict between ‘custody’ and ‘treatment’
orientations in California’s prisons (Goodman, Page & Phelps, 2015). However, Buchan (2020),
drawing on Koehler (2019), has argued that, in the Scottish case, consensus at the political level
over the need to reduce imprisonment has served to shut out more radical voices – which might
pose difficult questions over why and how we punish – from struggles in the penal field, in favour
of more technocratic policy fixes. We seek therefore to emphasise that while contestation is cer-
tainly still present (although often covert), it may not be substantively addressed to the penal
issues ostensibly under consideration.
In this article, we draw on empirical evidence from the Scottish contextto account for this phe-
nomenon, and expand the agonistic approach by connecting it with a second theoretical concept –
‘performative regulation’. This is described by Mackenzie & Green (2008) as regulation: ‘which in
appearance serves political ends but in practice effects an inconsequential level of control’ (p.138).
They developed this concept to explain the ability of business interests to influence the legislative
process in relation to regulating the trade in antiquities. In this context, they describe a situation
of mixed consensus and conflict in which antiquities-trade interests (many of them at least com-
plicit in the looting of cultural property) were able to influence the process of lawmaking such
that regulatory legislation did not apply to them. The prominence of trade interests in a related
advisory panel allowed them to set the agenda, so that legislation was developed to be acceptable
to the trade rather than to serve the public interest. The result was an Act which appeared to be
addressing the problem of the illicit trade, but which in fact imposed only minimal burdens of
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