Punishment's Legal Templates: A Theory of Formal Penal Change

• DOI: http://doi.org/10.1111/lasr.12400
• Published date: 01 June 2019
• Date: 01 June 2019

Punishment’s Legal Templates: A Theory of Formal

Penal Change

Ashley T. Rubin

†

The well-known gap between law on the books and law in action often casts

doubt on the significance of changes to law on the books. For example, the

rise and fall of penal technologies have long been considered significant indi-

cators of penal change in socio-historical analyses of punishment. Recent

research, however, has challenged the significance of apparently large-scale

penal change of this kind. This article clarifies the significance of penal

technologies’ rise and fall by offering an alternative account of formal penal

change, introducing the analytical concept of “legal templates,” structural

models of legal activity (e.g., punishment) available for authorization and

replication across multiple jurisdictions. Analyzing punishment’s templates

explains how new penal technologies can be important harbingers of

change, even when they fail to revolutionize penal practice and are not

caused by a widespread ideological shift. This article locates the significance

of punishment’s legal templates in their constitutive power—their ability, over

the long term, to shape cognitive-cultural expectations about what punish-

ment is or should be. This power appears only when the template is widely

adopted by a plurality of jurisdictions, thereby becoming institutionalized.

Ultimately, these institutionalized templates define the scope of future

punishment.

Awide array of law and society scholarship has described the

law as a severely limited social institution with uncertain influence.

Examples of the law’s limits abound, from the many unlawfully

injured people who, prevented by their vulnerable status, do not

mobilize the law (Albiston 2005; Bumiller 1987; Nielsen 2000), to

disputants who prefer business and community norms over law

(Ellickson 1986; Macaulay 1963). As a tool of social change, the

law frequently disappoints: major court victories and much-

celebrated legislation have been limited in their effect (Edelman

1992; Rosenberg 1991). In myriad accounts, legal change of many

†

I wish to thank the anonymous referees and LSR editors, as well as Ellen Berrey,

Ronit Dinovitzer, Laurie Edelman, Malcolm Feeley, Phil Goodman, Steve Hoffman,

Johann Koehler, Sida Liu, Paula Maurutto, Fergus McNeill, and Joshua Page for reading

earlier drafts of this article and providing very helpful comments (extra thanks to Steve

Hoffman for reading two versions of thearticle). I am also grateful to Kelly Hannah-Moffat,

Heather Schoenfeld, and John Eason for talking through the paper’s ideas. All flaws are my

own. A previous version of this article was presented at the 2016 Penal Boundaries Work-

shop at the University of Toronto.

Please direct all correspondence to Ashley Rubin, Department of Sociology, Univer-

sity of Toronto, Canada; e-mail: ashley.rubin@utoronto.ca

Law & Society Review, Volume 53, Number 2 (2019): 518–553

©2019 Law and Society Association. All rights reserved.

518

stripes falls short of expectations because there is a significant,

well-examined gap between law on the books and law in action

(Friedman 2016).

These findings pose a dilemma: in what sense do changes to

law on the books matter? When official policy rhetoric and actual

practice diverge extensively, what is the significance of different

rhetoric and new laws? One version of this dilemma appears in

differing accounts of legally authorized changes to the available

forms of punishment, or formal penal change: while some

accounts describe the adoption of new penal technologies

1

as sig-

naling important sea changes in penality, other accounts caution

that such shifts hide greater continuities across time and heteroge-

neity across place. What, then, is the significance of formal penal

change, particularly when its impact on practice is smaller, differ-

ent, or more variable than intended or expected?

This article uses formal penal change as a case study to clarify

the significance of legal change. Drawing on neo-institutional the-

ory from organizational sociology (DiMaggio and Powell 1983;

Edelman 1992, 2016; Meyer and Rowan 1977; Tolbert and

Zucker 1983), it proposes a theory of formal penal change. This

theory begins by deconstructing punishment into its constituent

legal templates, or individual structural models of punishment avail-

able for authorization and replication across multiple jurisdictions,

whether defined as legal, political, or organizational units.

2

Although extant studies of formal penal change have focused on

penal technologies, this study shifts the focus to their underlying

legal templates, thereby splitting penal technologies into their

intention—the guiding idea or principal organizing structure (the

template)—and practice—how they play out in reality. Moreover,

as the formal structures of punishment, templates are distinct

from other outcomes of interest, such as individual-level decisions

to punish, trends in punishment rates, and the popularity of cer-

tain logics or justifications of punishment.

Next, I repurpose insights from neo-institutional theory and

the law and society literature to construct a generalizable narrative

of formal penal change, emphasizing legal templates’ diffusion.

First, many jurisdictions will adopt a legal template not for its

1

Although some scholars use “technology” specifically to signify the strategic use of

human bodies to achieve political purposes (Foucault 1977; Simon 2013), I avoid this

narrower version. Instead, I use the term “technology” broadly to mean any

instrument—including practices, policies, and organizations—used to achieve particular

purposes.

2

In this article, I define jurisdiction broadly to include not only city, county, state,

and national governments, but also government agencies and organizations, including

local police departments, state-level departments of corrections, and individual prisons or

parole agencies.

Rubin 519

effectiveness at crime control, but because it has been institution-

alized. Institutionalized legal templates are legitimacy-granting

structures: formally adopting these templates gives a jurisdiction

legitimacy. Second, institutionalized legal templates may have lim-

ited impact on actual practice when jurisdictions adopt (or retain)

the template simply to emphasize its visible conformity to norma-

tive expectations; such jurisdictions can privately pursue their

technical goals by loosely coupling the template to actual practice.

Finally, institutionalized legal templates can change official and lay

understandings of what constitutes acceptable punishments. Even

in the absence of meaningful change on the ground, such legal

templates can shape long-term expectations about punishment

and the legitimacy of jurisdictions, organizations, and actors met-

ing out punishment.

By examining templates separately from their impact on actual

practice, the template’s diffusion becomes one of the most impor-

tant, but under-emphasized, analytical sites for understanding the

significance of formal penal change. Whereas most accounts of for-

mal penal change focus on factors driving templates’ innovation or

initial adoption, this theory focuses on the reasons for, and conse-

quences of, templates’ diffusion. This analytic shift from innovation

to diffusion changes how we envision penal change over time—

from a linear timeline to a messy, variegated, incomplete process—

in a way that complicates standard theories about the engines,

mechanisms, and significance of penal change. In doing so, it

moves beyond earlier explanations—for example, that penal

change in the form of new penal technologies will have a particular

impact on practice, serving as the physical manifestation of new

values that brought about the new technology—that have been

recently discredited (Goodman et al. 2017). Ultimately, this article

theorizes the conditions under which formal penal change matters,

even when its impact on practice is limited or different from

expectations.

Penal change is only one example of legal change (Lynch

2011), but this theory is generalizable to other areas of law.

Indeed, we can think of changes to law on the books—the rise

and fall of new rights, jury trials, employment regulations, consti-

tutions, problem-solving courts, alternative dispute resolution

fora—as legal templates, or particular models of legal activity

available for authorization and replication. Applying this theory

encourages a broader, more historical analysis that examines these

developments not in isolation but as part of a longer sequence of

developments. This longer look reveals templates’ broader signifi-

cance: a legal template may facilitate only limited changes to law

in action but, if institutionalized, it may have lasting power as con-

stitutive of future expectations about the law.

520 Punishment’s Legal Templates: A Theory of Formal Penal Change