PENALITY AND THE PENAL STATE

• Published date: 01 August 2013
• DOI: http://doi.org/10.1111/1745-9125.12015
• Author: DAVID GARLAND
• Date: 01 August 2013

THE 2012 SUTHERLAND ADDRESS

PENALITY AND THE PENAL STATE∗

DAVID GARLAND

School of Law and Department of Sociology

New York University

KEYWORDS: sociology of punishment, penality, penal state, mass incar-

ceration, comparative penology

The sociology of punishment has developed a rich understanding of

the social and historical forces that have transformed American penality

during the last 40 years. But whereas these social forces are not unique to

the United States, their penal impact there has been disproportionately

large, relative to comparable nations. To address this issue, I suggest that

future research should attend more closely to the structure and opera-

tion of the penal state. I begin by distinguishing penality (the penal field)

from the penal state (the governing institutions that direct and control

the penal field). I then present a preliminary conceptualization of “the

penal state” and discuss the relationship between the penal state and the

American state more generally.

It is a singular honor to receive the American Society of Criminology’s

Edwin H. Sutherland Award, particularly as someone who is not originally

from the United States and who is still in many ways a very British

criminologist. I am grateful to the Sutherland Award Committee, to ASC

President Rob Sampson, and the ASC’s membership for honoring my work

in this way.

My research (and that of my many colleagues) is devoted to the soci-

ological study of punishment and penal control: to the field that is usu-

ally known as the “sociology of punishment” or “punishment and society.”

The significance of this work has grown during the last three decades, as

∗My thanks for their generous advice and assistance to Vanessa Barker, Jeff Ben-

gel, Sharon Dolovich, Gretchen Feltes, Cristie Ford, David Greenberg, Bernard

Harcourt, James B. Jacobs, Lisa Kerr, Issa Kohler-Hausmann, Jamie Peck,

Michael Rowan, Joachim Savelsberg, Stephen Schulhofer, Christopher Seeds,

Jonathan Simon, Richard Sparks, and the Filomen D’Agostino and Max E. Green-

berg Research Fund. Direct correspondence to David Garland, New York Univer-

sity School of Law, 340 Vanderbilt Hall, 40 Washington Square South, New York,

NY 10012 (e-mail: David.Garland@nyu.edu).

C2013 American Society of Criminology doi: 10.1111/1745-9125.12015

CRIMINOLOGY Volume 51 Number 3 2013 475

476 GARLAND

real-world developments have moved the penal system ever closer to the

forefront of social and political life. And punishment and society research

has, over the same period, made considerable intellectual progress, becom-

ing more systematic in its methods, more consistent in its use of data, more

theory driven in its research, and increasingly historical and comparative

in conception. But instead of celebrating what we have achieved thus far, I

want to use this lecture as an occasion to look forward and consider how the

next phase of research and scholarship might best advance. For all its recent

progress, the sociology of punishment remains a relatively young specialism

with much work still to do. My intention here is to identify some lines of in-

quiry that are ripe for development in the hope that this may encourage

others to enter the field and take up these challenges.

Punishment and society scholarship addresses a wide range of theoreti-

cal, empirical, and policy issues and is decidedly international and interdis-

ciplinary in character.1But in recent years, and for a great many scholars,

the effort to explain the extent, intensity, and distinctive nature of penality

in contemporary America has been at the top of the research agenda. It is

this topic—contemporary American penality—I want to consider here.2I

will proceed to propose three shifts of emphasis in our research priorities

that can be summarized as follows: In seeking to explain penality, we should

1) attend more closely to the structure and operation of the penal state, 2)

view penal policy in the context of the problem environment in which pe-

nality operates rather than as an independent policy domain, and 3) develop

more in-depth comparative studies focused on a few jurisdictions selected

for their theoretical relevance.

AMERICAN PENALITY

The headline aspects of America’s penal system are by now well known,

even to nonspecialists, but let me mention five of its most distinctive

characteristics.

1. For a sampling, see Punishment & Society: The International Journal of Penology

and the recent SAGE Handbook of Punishment and Society (Simon and Sparks,

2012).

2. “Penality” has come to be the standard term used to refer to the subject matter of

the sociology of punishment. It refers to the whole of the penal complex, including

its laws, sanctions, institutions, and practices and its discourses, symbols, rituals,

and performances. As a generic term it usefully avoids the connotations of terms

such as “penal system” (which tend to stress institutional practices but not their

representations, and to imply a systematicity that often is absent) or else “punish-

ment” (which suggests that the phenomenon in question is primarily “retributive”

or “punitive” in character, thereby misrepresenting penal measures that are ori-

ented to other goals such as control, correction, compensation, etc.). See Garland

(1985: x).

PENALITY AND THE PENAL STATE 477

First, there is the persistence of capital punishment in the United States

at a time when all the other liberal democracies in the Western world have

abandoned its use. The contrast between America and other Western na-

tions was most marked between 1976 and 1998 when total abolition became

standard elsewhere, whereas in the United States, capital statutes prolifer-

ated, the penalty’s constitutionality was affirmed, and executions became

more frequent. Between 2000 and 2013, U.S. death sentences and execu-

tions have declined from more than 300 sentences and close to 100 execu-

tions per year to fewer than 100 sentences and 50 executions. In the same

period, the number of death penalty states has gone from 38 to 33. But the

fact that America retains capital punishment at all is strikingly at odds with

the abolitionism of most comparable nations.

In a criminal justice system that prosecutes tens of millions of offenders

each year, capital punishment now directly affects a vanishingly small num-

ber of offenders. And its persistence is more indicative of contingent devel-

opments in constitutional law and in racial and regional politics than of any

functional utility as a nationwide mode of penal control. But for scholars

who specialize in the study of capital punishment, and for many nonspecial-

ists who follow current affairs, the retention of the death penalty is the most

distinctive feature of American penality today.

Second, during the last 40 years, America has developed a rate of impris-

onment that is greatly in excess of prior American rates, much higher than

that of comparable nations, and probably the highest of any nation in world

history. The total number of inmates in custody on the average day is ap-

proximately 2.3 million prisoners, with 1,504,000 in state or federal prisons

and 736,000 in city and county jails. Expressed as a per-capita rate of the

general population, this is a national rate of 720 per 100,000. Such a rate is

more than six times as great as the Canadian equivalent (114 per 100,000)

and anywhere from five to ten times as high as that of individual western

European nations (which range from 60 per 100,000 in Finland to 150 per

100,000 in England and Wales). The American rate today is more than four

times as high as it was in 1970.3

A third feature is the racial cast of America’s prisons and jails—a phe-

nomenon that echoes the racial disparities long affecting the administration

of capital punishment. In America today, 42 percent of prisoners are Black,

15 percent are Hispanic, 40 percent are White, and 3 percent are classi-

fied as “other.” This ethnic mixture is markedly different from that which

prevailed for much of the twentieth century: Prior to the 1960s, African

Americans accounted for between 20 and 30 percent of state and federal

3. See http://www.sentencingproject.org/map/map.cfm, International Centre for

Prison Studies (2007), World Prison Brief: http://www.prisonstudies.org/info/

worldbrief/wpb stats.php?area=europe&category=wb poprate.