A Neo‐Institutional Account of Prison Diffusion

Date01 June 2015
Published date01 June 2015
A Neo-Institutional Account of Prison Diffusion
Ashley T. Rubin
Interest in legal innovations, particularly in the criminal law realm, often cen-
ters on an innovation’s emergence, but not its subsequent diffusion. Typifying
this trend, existing accounts of the prison’s historical roots persuasively
explain the prison’s “birth” in Jacksonian-Era northern coastal cities, but not
its subsequent rapid, widespread, and homogenous diffusion across a cultur-
ally, politically, and economically diverse terrain. Instead, this study offers a
neo-institutional account of the prison’s diffusion, emphasizing the impor-
tance of national, field-level pressures rather than local, contextual factors.
This study distinguishes between the prison’s innovation and early adoption,
which can be explained by the need to replace earlier proto-prisons, and its
subsequent adoption, particularly in the South and frontier states, which was
driven by the desire to conform to increasingly widespread practices. This
study further attributes the isomorphic nature of the diffusion to institutional
pressures, including uncertainty surrounding the new technology, pseudo-
professional penal reformers and their claims about competing models of con-
finement, and contingent historical factors that reinforced these institutional
pressures. This study illustrates the importance of distinguishing between the
motivations that initiate criminal law innovations and those that advance their
The diffusion of legal institutions, policies, and techniques has
tremendous consequences for the interaction between law and
society. New technologies’ diffusion can potentially revolutionize
legal practice, general assumptions, and material outcomes.
These consequences have followed many innovations, including
This research was supported by a Berkeley Empirical Legal Studies Fellowship (2011–
2012), a Jurisprudence and Social Policy Dissertation Grant (2012), and a Library Resident
Research Fellowship at the American Philosophical Society Library (2011–2012). The
author would like to thank Nora Lambrecht for her assistance in compiling the statutes for
this project and UC Berkeley’s Undergraduate Research Apprenticeship Program, which
sponsored her work. The author would also like to thank Eric Baumer, Tom Blomberg,
Ted Chiricos, Miltonette Craig, Lauren Edelman, Malcolm Feeley, Cybelle Fox, Johann
Koehler, Calvin Morrill, Deana Rohlinger, Jonathan Simon, and Stephen Tillotson for
reading and commenting on multiple drafts of this article. Finally, the author would like to
thank the editors and the anonymous reviewers for their very helpful feedback. Any errors
remain my own.
Please direct all correspondence to Ashley T.Rubin, College of Criminology and Crimi-
nal Justice, Florida State University, 112 S. Copeland St., Tallahassee, FL 32306; e-mail:
Law & Society Review, Volume 49, Number 2 (2015)
C2015 Law and Society Association. All rights reserved.
alternative dispute resolution (Edelman and Suchman 1999),
rights talk (Milner 1989), problem-centered courts (Nolan 2001),
and “mega” law firms (Galanter 1983). Significantly, it is these
innovations’ diffusion across organizations and states, not just their
emergence that increases their ability to affect legal processes and
outcomes. Understanding how legal innovations diffuse is, thus,
necessary to understand law’s impact on society.
Unfortunately, scholars rarely investigate the mechanisms that
spread criminal justice innovations (Grattet, Jenness, and Curry
1998). Studies of penal change have primarily analyzed innova-
tions or their widespread consequences. Thus, to understand the
popularity of three strikes laws (Zimring, Kamin, Hawkins 2001),
supermaximum-security prisons (Reiter 2012), or “sunbelt
justice” (the strange mixture of racially tinged punitiveness and a
cost-conscious small-government ethos) (Lynch 2010), scholars
study the first instance or the most copied examples. While this
approach is vital, similarly enthusiastic examinations of diffusion
are necessary to better understand change.
Instead, scholars treat diffusion as a natural consequence of
innovation. They implicitly posit that whatever zeitgeist caused
the innovation was present elsewhere, albeit less intensely. Alter-
natively, scholars argue widespread belief in innovations’ efficacy
at reducing crime, or generating political capital, explain jurisdic-
tions’ adoption. Indeed, scholars have amply illustrated the politi-
cal utility of adopting tough-on-crime policies (Beckett 1997;
Campbell and Schoenfeld 2013; Gottschalk 2006; Simon 2007).
However, this approach overlooks the mechanisms by which
innovations spread and understates the contingent nature of dif-
fusion. An emphasis on diffusion would interrogate the factors
motivating different jurisdictions’ adoption of new practices.
Several exceptional studies have examined the diffusion
rather than emergence of criminal law technologies. Studies of
community-based policing (Crank 1994), COMPSTAT (Willis,
Mastrofski, and Weisburd 2007), and hate crime definitions
(Grattet and Jenness 2005) have carefully reconstructed police
departments’ decision-making processes, highlighting the mecha-
nisms carrying innovations to subsequent adopters. Other schol-
ars have quantitatively modeled worldwide changes in sex crime
laws (Frank, Camp, and Boutcher 2010), the national prolifera-
tion of hate crime laws (Grattet, Jenness, and Curry 1998), or the
Progressive-Era diffusion of juvenile justice programs (Sutton
1988, 1990) and mental institutions (Sutton 1991). However, doc-
umenting a general shift in approaches to criminal justice without
identifying the mechanisms that spread innovations remains the
dominant framework for both historical and contemporary
366 A Neo-Institutional Account of Prison Diffusion
Departing from this trend, this article examines the diffusion
of one of the most significant innovations in legal history: the
modern prison. By the Civil War, more than 30 state prisons had
been established, at least one in almost every state. While the
prison’s early history has enjoyed great scholarly attention,
accounts explain the prison’s initial emergence, design, and func-
tioning. The prison’s subsequent diffusion has received far less
attention. Indeed, leading accounts convincingly explain the pris-
on’s birth in large, Eastern-seaboard cities through cultural, polit-
ical, and economic factors (Foucault 1977; Rothman 1971;
Rusche and Kirchheimer 1939). However, the prison’s diffusion
was largely divorced from these same factors. These standard
frameworks cannot explain why the prison diffused so rapidly,
widely, and homogeneously across the country, despite great cul-
tural, political, and economic diversity. This subsequent diffusion
is an equally important, but largely unexplained, part of prison
Using a neo-institutional perspective, this article re-examines
the rise of the prison, focusing on its diffusion across the United
States. Neo-institutional theory (DiMaggio and Powell 1983;
Meyer and Rowan 1977) emphasizes the influence of normative
prescriptions and cognitive models within an organizational field,
instead of technical imperatives or local needs. Three features of
the prison’s diffusion suggest the importance of field-level devel-
opments: this diffusion was rapid (20 of the 26 existing states
adopted prisons in the first two decades), widespread (affecting
the North and the South, frontier and established states), and
homogenous (almost all prisons adopted the same model of con-
finement). Local factors would likely have produced greater vari-
ation in the timing, location, and character of prisons adopted.
Drawing on a wealth of primary and secondary sources, this
article grounds the prison’s diffusion in field-level pressures that
stretched across the country’s diverse terrain. Prisons initially
emerged as technical solutions to problems in Northeastern cities;
once developed, however, prisons became symbols of national
progress. Reliance on outdated penal technologies became a
liability. Frontier and Southern states, despite their distinctive cul-
tural, political, and economic needs, adopted prisons to avoid
criticism. While the prison spread across the country, other insti-
tutional pressures encouraged similarity of design. Uncertainty
On Anglo-American penal reform in this period, see Bookspan (1991); Foucault
(1977); Hindus (1980); Hirsch (1992); Ignatieff (1978); Kann (2005); Keve (1991); Lewis
(1922, 1965); McKelvey (1977); McLennan (2008); Melossi and Pavarini (1981); Meranze
(1996); O’Brien (1982); Rothman (1971); Rusche and Kirchheimer (1939); Sellin (1976);
Spierenburg (1991).
Rubin 367

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT