A Neo‐Institutional Account of Prison Diffusion

• DOI: http://doi.org/10.1111/lasr.12136
• Date: 01 June 2015
• Published date: 01 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

diffusion.

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:

arubin@fsu.edu.

Law & Society Review, Volume 49, Number 2 (2015)

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C2015 Law and Society Association. All rights reserved.

365

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

studies.

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,

1

most

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

history.

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

1

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