(p. 77) 3. Punishment and welfare: social problems and social structures
In the sociology of punishment and comparative penology it has become common to observe significant connections between ‘punishment’ and ‘welfare’—or more precisely, between a jurisdiction’s penal practices and its institutions of public assistance. In this chapter I discuss these connections and ask how they might best be understood. After reviewing the existing literature, I argue that future research ought to view the relationship between penal and welfare policy in relation to the social problems these policies purportedly address (usually thought of as ‘crime’ and ‘poverty’ respectively) and also in relation to the larger social and economic processes that shape these policies and generate these problems. These relationships are neither straightforward nor well understood, and one aim of this chapter is to introduce greater clarity into our discussions of these issues.
I begin by discussing the relationship between punishment and welfare as it features in current research and the scholarly literature. I then turn to the less-discussed question of how penal and welfare policies relate to the social problems that they purport to address and to the political and socio-economic structures within which they operate.
The punishment–welfare connection is currently conceptualized in two rather different ways—as a historical relationship and as a comparative correlation—and I discuss each of these in turn.
(p. 78) Historical Studies
One well established account of the punishment–welfare relationship takes the form of a historical thesis about the rise and subsequent retrenchment of welfare states and the impact of these welfare state developments on penal policy and criminal justice. Historical monographs such as Punishment and Welfare (Garland 1985) and City of Courts (Willrich 2003) describe how the emergence of welfare states in the UK and the US at the start of the twentieth century reshaped ideas of crime causation and criminal responsibility and prompted the development of an array of ‘penal-welfare’ practices, the most important of which were the juvenile court, probation, social inquiry reports, social work with offenders, indeterminate sentencing, rehabilitative prison regimes, and parole. In France, works by Michel Foucault and his collaborators Jacques Donzelot and Francois Ewald—most notably Discipline and Punish (1977), The Policing of Families (1980), and L’Etat Providence (1986)—drew attention to similar shifts in the nature of legal judgment and penal control: shifts that these authors associated with the emergence of the ‘human sciences’ (medicine, psychiatry, criminology, psychoanalysis, etc.) and the rise of ‘the social’ with its new forms of tutelage, supervision, and expert-led relations of power-knowledge.1
In recent years it has been the retrenchment of the welfare state and the impact of that retrenchment on criminal justice that has drawn renewed attention to the penal-welfare nexus. Simon’s Poor Discipline (1993) and Garland’s Culture of Control (2001) analyse how the penal-welfare practices of mid-twentieth-century America and Britain were revised or replaced in the 1980s and 1990s as the political forces of the New Right harnessed the effects of economic and cultural change to attack the welfare state and its associated practices. In the penal sphere, this rightward movement resulted in a shift of emphasis from social causation to individual blame; a downgrading of offender-centered welfarism; and a renewed stress on more traditional penal purposes such as retribution and incapacitation. Recent studies of neoliberalism and penality—notably Wacquant’s Punishing the Poor (2009) and Harcourt’s The Illusion of Free Markets (2011)—make much the same claim, viewing the emergence of punitive sentencing and mass incarceration as one aspect of a hegemonic neoliberalism that seeks to reinforce a precarious, low-wage labour market by restricting welfare benefits and extending penal controls.
We can summarize the central finding of the historical literature as the claim that a certain style of penal practice—variously described as correctionalism, rehabilitation, the treatment approach, or penal-welfarism—is a concomitant of welfare state government and that the penal-welfare aspects of criminal justice tend to rise and fall in tandem with the broader social policies of the welfare state. Stated in these bald terms, the punishment-welfare connection seems like an obvious one but it has often been overlooked nevertheless—probably because of the disciplinary division between the ‘social policy’ literature (which generally omits any mention of crime policy and (p. 79) criminal justice) and ‘criminology’ (which neglects other areas of social policy and social control). If we were to ignore this artificial division between academic specialisms, we could begin to integrate criminal justice history into the broader history of social policy and the welfare state. So for instance, the analysis of post-1960s socio-economic change and its criminological impacts set out in Garland (2001) could be viewed as a specific instance of a more general social phenomenon that has been extensively analysed in recent social policy scholarship: namely, the emergence of ‘New Social Risks’ brought about by deindustrialization, labour market transformations, and changes in family form and household structure together with the development of adaptive policy responses designed to deal with them.2 If this is indeed the case, then criminological researchers ought to consider whether the structural transformations that are currently remaking welfare state regimes—that is, the ongoing shift from the neoliberalized welfare regimes of the 1990s (with their emphasis on marketization, privatization, and restricted benefits) to the social investment welfare states of the twenty-first century (with their emphasis on labour market activation and investment in human capital)—are resonating in the penal domain and if so, precisely how these wider changes are beginning to affect the ideology and operation of criminal justice systems.3
A rather different connection between punishment and welfare has been suggested by Elizabeth Hinton in her recent historical monograph, From the War on Poverty to the War on Crime (2016). Hinton’s provocative, revisionist thesis argues that the ‘War on Poverty’—the large-scale social reform project launched by President Johnson’s administration in 1960s America—led more or less directly to President Nixon’s subsequent ‘War on Crime’ and later to the mass incarceration of the 1980s and 1990s.4 It is unclear whether Hinton’s claim is that the ‘seeds’ of mass incarceration were already present in the poverty-fighting initiatives of Johnson’s liberal administration—in which case, a certain form of welfarism somehow entails a hidden, incipient punitiveness—or is the less provocative (and more plausible) idea that the perceived failure of Johnson’s social welfare approach prompted the subsequent build-up of policing and punishment as an alternative means of dealing with urban unrest and rising crime. In either case, Hinton’s thesis concerns a particular episode in American urban politics and the generalizability of her thesis remains to be shown.
Hinton’s book also describes how the War on Poverty’s subsequent focus on crime-control led to the involvement of police departments in community agencies, welfare centres and youth service bureaus. This on-the-ground blending of welfare (p. 80) and policing functions is a theme that has become prominent again today as neoliberal governments seek to scale back public assistance and discourage individuals from applying for welfare support. In both America and Britain there has been a pronounced tendency for means-tested welfare benefits to become more conditional and more disciplinary; for a greater emphasis to be placed on the pursuit of welfare fraud; and for welfare recipients to become increasingly subject to sanctions (such as loss or suspension of benefits) for the violation of benefit conditions and procedures (Gustavson 2011; Soss et al. 2011; Goddard 2012; Kohler-Hausmann 2015, and Adler 2016).
This process of blending and blurring reminds us that the distinction between punishment and welfare is more easily drawn in the abstract than in practice. Long before the rise of the modern welfare state, penal sanctions such as imprisonment provided some minimal forms of welfare—a basic diet, a modicum of healthcare, evangelical prison visits, help with resettlement, etc.—especially for ‘deserving’ inmates such as juveniles or female offenders (Morris and Rothman 1995).5 And even capital punishment will generally provide some minimal care for the condemned in the form of medical supervision, an elaborate final meal, a pastor to administer the last rites, and so on (Garland 2010). Perhaps only monetary penalties appear altogether devoid of welfare elements, though courts often permit instalment payment which help ensure compliance by limiting hardship.
If we turn to welfare measures—and particularly to practices of public assistance and welfare for the poor (as opposed to insurance-based entitlements or corporate welfare)—we find, conversely, that welfare provision is often accompanied by restrictions, conditions, and disciplinary elements of various kinds. Whether we consider nineteenth- century workhouses, twentieth-century Aid to Families with Dependent Children (AFDC), or twenty-first-century ‘workfare’, in each case the provision of aid to the poor—and the application procedures required to access such aid—generally involves some penal measure of stigma, humiliation, and hard treatment.
Penal practices flow into, overlap with, and merge together with welfare practices—and vice versa. Distinctions between the two are nominal rather than substantive. This hybridity is born of the fact that both penal and welfare practices are forms of remedial social control that target a suspect population—offenders, delinquents, claimants, etc.—whose dependency upon the public purse is at once a fact to be recognized and a cost to be minimized.6
This hybridity is encapsulated in conceptual terms such as ‘penal-welfare’ and ‘penal-welfarism’ that have grown out of research in this field. Penal-welfarism and penal-welfare refer to the adoption of welfarist goals in the criminal justice context and to penal practices designed to promote these welfarist ends. Penal-welfare measures are penal sanctions that contain ‘welfarist’ (i.e. educational, or therapeutic, or social work) elements. A penal-welfare regime is thus a hybrid criminal justice system involving welfare as well as punishment—with penal-welfare measures operating (p. 81) alongside straightforwardly penal forms of sentencing and punishment. Moreover, in penal-welfare systems the rehabilitative treatment of needy, reformable, deserving offenders is generally accompanied by the control and incapacitation of the incorrigible or the dangerous—both modes being facilitated by indeterminate sentencing, classification processes, and the reduced concern for ‘proportionality’ that are essential elements of penal-welfarism.
‘Penal-welfarism’ should be distinguished from a purely welfarist approach to crime control. In contrast to penal-welfare, a properly welfarist approach would not operate primarily in the context of criminal justice or the penal system. Rather than intervene in the process of punishment, welfarist policies would seek to prevent crime and head off criminal involvement by means of policies such as family support, education and training, employment, and social inclusion that support at-risk families and communities and generally promote social and economic integration.7
Public assistance and penal control frequently encounter the same underlying problems—mental illness, addiction, and drug abuse, joblessness, destitution, and homelessness—though they address these problems in different ways and with different effects.8 And similar debates and dilemmas tend to emerge in both domains. Practices of punishment and welfare always raise questions of culpability and responsibility. Are individual offenders and claimants to blame for their personal circumstances? Are they helpless victims of large-scale social forces or responsible agents who chose their own fates? And in both domains, these moral questions of desert are mixed up with practical problems such as ensuring deterrence and minimizing dependency.
Punishment and welfare both raise issues of reciprocity—giving people what they deserve and ensuring quid pro quo—and they each entertain the possibility of compassion in the form of charity, forgiveness, and mercy. They both involve elements of stigma and humiliation that can make individuals feel outcast and degraded, and thereby intensify their deviance or dependency (Matza 1966). They utilize common techniques such as incentives and disincentives, normalization and discipline, reporting and responsibilization and they draw upon similar discourses of personal responsibility, dependency, and desistance (Seeds 2012; Haney 2004). And in both domains, opinion is sharply divided between progressives who blame the social system and seek to maximize the welfare and minimize punishment and conservatives who hold individuals responsible for their own fate and treat them accordingly. Debates about freedom versus determinism and desert versus deterrence are recurring features in both areas, and over time they tend to display parallel histories that shift from individualism to collectivism and back again (Garland 2001).
(p. 82) There is a final point about the penal-welfare connection that we might draw from the historical literature. In his comparative historical study of correctional criminology and its influence in America and Europe, Michele Pifferi (2016) presents evidence that suggests that a jurisdiction’s commitment to penal-welfare practices need not co-vary with its broader commitment to welfare policies and a particular welfare state regime. According to Pifferi, American states such as California had, by the 1960s, established indeterminate sentencing regimes that went much further than those of any European nation. At the same time, America’s welfare state institutions were, in general, much less extensive and much less generous than those of the Western Europeans (Garland 2016). The implication is that penal-welfare institutions can, in practice, be disaggregated and one element (such as indeterminate sentencing) can be effectively and extensively established while others (such as social provision for offenders) remain under-developed. Precisely because welfare and social services were—and are—much less developed in America than in Western European nations, it is not surprising that America’s commitment to the caring, supportive aspects of penal-welfarism—such as the provision of social services, education, training, and treatment to offenders—has been less extensive (Whitman 2003; Subramanian and Shames 2013) while its embrace of penal-welfarism’s risk-management aspects has been much more thoroughgoing. The component elements of penal-welfarism can, it seems, be implemented to differing degrees: such regimes are not a matter of all or nothing.
The punishment–welfare link has also, and more recently, been a recurring finding in a developing research literature on comparative penology, though here the connection is a slightly different one. The association being observed is not between penal and welfare modes of governmental thinking and acting, nor is the focus on the emergence of hybrid penal-welfare measures. Instead, comparative inquiry has centred on an observed relationship between the size and generosity of welfare states and the size and severity of penal systems. A growing body of work has converged around a negative correlation thesis in which nations (or sub-national states) with more generous welfare states tend to exhibit lower per capita imprisonment rates and more lenient and humane penal systems, while jurisdictions with smaller, meaner welfare states are prone to higher rates of imprisonment and more severe sentencing.9 It should be said that this punishment–welfare correlation, while frequently observed, is by no means unvarying: results vary across time periods (Beckett and Western 2001) and the association is more significant with respect to extreme cases (such as (p. 83) the US and Norway) than it is in the middle range (Cavadino and Dignan 2006). But on the basis of what we currently know, the correlation seems empirically robust and conceptually plausible.
These comparative studies are important and will form the basis for significant research in the future. But there are some issues in this literature that merit further attention, particularly the data and metrics used in comparative studies; the conceptions of ‘welfare state’ and ‘penal system’ that these studies employ; and the causal mechanisms that are assumed to underpin the empirical correlations of punishment and welfare. In what follows I examine these three topics with the aim of revealing what is at stake and suggesting some possible routes forward. Thereafter, I proceed to discuss the relationship of penal and welfare policies to the problems they purportedly address and the relationship of these policies and problems to larger structures of social and economic organization.
Data and Metrics
The first issue to consider is the question of the appropriate data and metrics to be used in comparative studies of punishment and welfare. Most commentators acknowledge that single dimension metrics such as ‘rates of imprisonment per 100,000 population’, or ‘levels of social expenditure as a proportion of GDP’ are too crude to get at the character of a penal system or a welfare state, but these easy-to-access metrics nevertheless continue to form the basis for many analyses in comparative penology.
One reason why comparison by reference to a single one-dimensional metric is inadequate has to do with the complexity of penal systems. If the penal systems being compared are internally heterogeneous—and all of them are—then any single metric will tend to gloss over important variation. In the early 1970s, Scottish criminal justice was characterized both by a radically welfarist, community-based, non-custodial approach to juvenile offenders—the Children’s Hearing System—and also by the notorious Segregation Unit in Inverness Prison—‘the Cages’—where unruly inmates were subjected to shockingly harsh and degrading conditions (Boyle 1984). A comparison that focused exclusively on the system’s rate of imprisonment would miss both of these aspects, and hence much that was significant about the system. And if small systems are mixed in this way, how much more heterogeneous are larger, federated systems such as that of the US, where the imprisonment rates of some states are four times as high as others?
Another reason why such measures are inadequate—to be discussed later in this chapter—has to do with the problem environment in which penal policy develops. Comparisons between penal systems are decontextualized and distorted if penal measures are discussed without reference to the nature and extent of the patterns of crime and violence that trigger penal processes and (indirectly, to some extent) shape penal policy. This is particularly the case when commentators equate higher levels of penal sanctioning with greater ‘punitiveness’ without discussing the underlying conduct being addressed by penal measures.
The same problem of non-uniformity applies to the analysis of trends and patterns of change. For instance, a recent Sentencing Project report (2015) noted that the recent, widely discussed trend towards reduced rates of imprisonment in the US (p. 84) is, in fact, an aggregation of several more varied state-level trends, with two thirds of the states showing modest reductions and the other third continuing to increase their prison populations. Moreover, as Christopher Seeds (forthcoming) has pointed out, the recent trends towards decarceration in American states are themselves complex, since the reforms that reduce incarceration for ‘shallow-end’ offenders are often offset by new laws that increase the tariff for more serious offenders—a bifurcation that decreases the overall numbers in prison while increasing the time that some offenders spend there.
Reductive, single-dimension comparisons will consequently be of limited use, providing little more than a starting point for analysis. On the other hand, more in-depth, qualitative measures such as the ten-dimensional analysis of penal ‘harshness’ developed by Whitman (2003) in his comparative study of the US, France, and Germany are difficult to operationalize for large-scale international comparisons. What then are the appropriate research strategies?
One approach is to adopt the method of in-depth, small-N comparison along the lines of Downes (1988), Barker (2009), Whitman (2003), and Pratt and Eriksson (2013), though these are most effective when strategically related to patterns and puzzles suggested by large-N comparisons (and vice versa).10 Alternatively, one might persist with the examination of a large number of cases while expanding the set of variables that forms the basis of comparison, as in the important work of Sutton (2004) and Lacey and Soskice (2017).
The issues raised here are problems that most fields of comparative analysis encounter in the early stages of their development. Similar problems characterized early work in comparative social policy. Like the sociology of punishment, comparative social policy (the comparative sociology of welfare states) began with single-factor explanations, pointing to processes of industrialization (Wilensky 1965) or of modernization (Flora and Alber 1976) as the causes of welfare state growth, and using single-metric data—typically government social expenditure as a percentage of GDP—as a basis for comparison. It then entered a phase of theoretical divergence and dispute, notably the contest between functionalist theory—which assumed that welfare states were pragmatic responses to the new economic and social needs of modern society—and theories of class action or power resources—which viewed welfare policies as the outcome of struggles between social classes or political groups (Korpi 1983; Myles and Quadagno 2002). Eventually, a more sophisticated, multi-dimensional, comparative approach emerged, using multiple methods, large-N and small-N studies, and comparative, historical and quantitative data (Baldwin 1990). At the same time, welfare states came to be viewed as an aspect of larger production systems and political economies and were studied within that larger framework (Hall and Soskice 2001). There is every reason to expect that the sociology of punishment will develop in similar ways, with work becoming more comparative, historical, and quantitative, situating penal practice in relation to its underlying problem environment as well as (p. 85) to the larger political process and overarching socio-economic structures that shape its development and functioning.
The methodological limitations that initially affected comparative social policy were eventually mitigated by better theorizations of the core features of welfare regimes and by the development of multi-dimensional metrics designed to measure these characteristics. At the level of welfare state theory, the influential work of Esping-Andersen (1990) shifted attention away from public spending (or ‘welfare effort’) towards an analysis of the operation and effects of welfare institutions, focusing on the extent to which they de-commodified social relations and redistributed resources; their impact on stratification and solidarity; the relation of state welfare to other sources of welfare; defamilialization effects, and so on. These theoretical advances were subsequently supported by the generation of more extensive and more detailed data-gathering by the Organization for Economic Co-operation and Development (OECD) and later by the development of advanced data sets such as Korpi’s Social Citizenship Indicator Program (SCIP) which supplied empirical material for the new questions that comparative scholars were pursuing.11
There is reason to hope for similar improvements in comparative penology as the field develops, particularly if its proponents can develop improved theorizations of penal systems and gather more detailed, systematic international data.
Conceptions of the Welfare State
Current work being done in the sociology of punishment and comparative penology does not exhibit a clear or consistent view of what exactly we mean when we talk about ‘welfare’ or ‘the welfare state’. And while there is no need for all scholarship in this field to work with the same conception, a greater level of precision and consistency in the use of key terms and concepts would improve analysis and help avoid confusion.
As a proxy for welfare state spending, some penal-welfare researchers use data on means-tested benefits for the poor even though these benefits constitute a very small part of overall welfare state effort and expenditure. That this is often done without acknowledging that the place of means-tested assistance in the welfare state as a whole runs the risk of reproducing a narrow and somewhat ideological conception of ‘welfare’. So for example, when Wacquant (2009) and Beckett and Western (2001) discuss ‘welfare’ levels and correlate these with rates of imprisonment, the welfare policies they refer to are AFDC, Medicaid, Supplementary Security Income (SSI), and food stamps—all of them means-tested benefits as opposed to social insurance entitlements.12 As a consequence, the associations they discover are between punishment and public assistance rather than between punishment and ‘welfare’ more broadly defined. (In most welfare states, the primary beneficiaries of welfare state transfers and social insurance entitlements are middle-class and upper-class employees and their families—see Garland 2016.)
(p. 86) The overlapping impact of punishment and welfare—and their shared function of governing the poor—has prompted the observation that the ‘welfare population’ and the ‘penal population’ are, particularly in neoliberal America, drawn from the same socio-economic groups—that is, poor, urban communities of colour, with the men in prison, the women on welfare.13 However, one needs to take care not to conflate welfare clients and prison inmates. In the US system (and elsewhere) it is the elderly, women, children, whites, and low-earning working people who are the chief recipients of means-tested benefits recipients—and these are not the demographic groups that compose the majority of the prison population. By contrast, the working age, able-bodied men who are typically sent to American jails and prisons are generally ineligible for social welfare benefits—and were not eligible even prior to the recent neoliberal reforms (Shannon 2013).14 And of course being in need of welfare support and being convicted of a criminal offence are not equivalent statuses, however much the two categories may, in practice, overlap.
Some writers also give the impression that the 1960s social state has become the 1990s penal state, the implication being that neoliberalism has effectively abolished the welfare state (Wacquant 2009). In fact, however, even in neoliberal America the welfare state has sustained its primary commitments to the major insurance-based programmes such as Social Security and Medicare as well as its corporate welfare transfers, most of which are hidden in the tax code (Pierson 2010; Garland 2016; Mettler 2011). It is welfare for the poor—above all, social services and support for families with dependent children—that has been most thoroughly recast and retrenched by neoliberal policies: the core institutions of the welfare state have remained firmly in place (Soss et al. 2011; Shannon 2013; Garland 2016).
Other writers in comparative penology, notably Cavadino and Dignan (2006), utilize a broader conception of welfare regimes that encompasses the institutions of social insurance, social welfare, and labour market regulation, and distinguish between ‘neoliberal’, ‘conservative corporatist’, ‘social democratic corporatist’, and ‘oriental corporatist’ regime types. Here the emphasis is on regime variation and on mapping national variations in rates of imprisonment and severity of sentencing on to the various ‘worlds of welfare’ that have been identified in comparative social policy research (Esping-Andersen 1990). And scholars such as Sutton (2004), De Giorgi (2006), Lacey (2007), and Lacey and Soskice (2017) work with a yet broader conception, focusing on forms of ‘political economy’ and ‘varieties of capitalism’ within (p. 87) which welfare regimes operate as one institutional complex within a larger socio-economic structure. Here the concept of ‘welfare state’ includes not just welfare for the poor and social insurance but also the institutions of economic management, collective agreements, corporatist processes, labour relations, and vocational training.
This broader analytic frame has been used to great effect in comparative research on economics, labour relations, and government, but it remains to be seen whether it can be effectively deployed in respect to penal policy—not least because it begs the question of how well integrated (or relatively autonomous) penal systems are with respect to mainstream economic processes. A focus on political economy takes us quite far away from the most important and most proximate determinants of penal outcomes—such as sentencing law and practice; prosecution policy, etc.—making it all the more important to specify the linkages between these two realms. The ‘varieties of capitalism’ literature was developed to explain the impact of production regimes and styles of economic management on outcomes such as growth, GDP, employment levels, and inequality. But these processes and relationships are not necessarily so illuminating for understanding the fates of those who are mostly outside the labour market, as individuals sent to prison tend to be (Western 2006). The analysis of economic and social stratification—particularly the systematic exclusion from job markets, housing, higher education, and marriage—is undoubtedly important for understanding patterns of crime and poverty and their concentration within specific demographic groups (Wilson 2011; Sampson 1987; 2012; Western 2006). What remains to be discovered is whether these production regimes and styles of economic management also shape punishment and welfare policy.
The recent turn to political economy as a framework for explaining penal policy leads me to the final issue I want to discuss: the question of causal mechanisms. We currently lack a clear and settled conception of the mechanisms and processes that produce the observed correlations between welfare states and penal outcomes. What exactly is it about generous welfare states that promotes low rates of imprisonment and more humane penal practices? Are generous welfare systems and lenient penal systems a joint expression of an underlying culture of inclusion and solidarity, as Pratt and Eriksson (2013) suggest? Are generous welfare states a corollary of solidaristic civil society institutions—families, communities, unions, and churches—that serve to prevent crime, thus reducing the need for penal controls (Garland 2017)? Do extensive welfare states—such as Sweden or the Netherlands—empower public sector professionals and pro-social ideologies that in turn inhibit or resist punitive policies (Pratt and Eriksson 2013; Downes 1988)? And why are residual, market-oriented welfare states—such as the US and the UK—associated with high levels of imprisonment and harsh sentencing? Is it because market individualism is associated with low levels of trust and solidarity; because economic and social insecurity generate higher crime levels and more punishment; or for some other reason? Does expenditure on corrections crowd out public spending on welfare (Ellwood and Guetskow 2017)? These are all questions that remain unanswered. If we are to move beyond the intuitive sense that harshness or generosity in one policy sphere is likely to be replicated in others, (p. 88) we will have to discover more about the causal processes that underlie the observed associations.
Some analysts, most notably Loic Wacquant (2009), view punishment and welfare as conjoined aspects of a single governmental strategy, designed to shore up a low-wage labour market by removing alternatives to employment such as living off criminal activities or claiming welfare benefits.15 This analysis answers the causal question of how welfare policy determines penal outcomes by positing a single strategy that directs both penal and welfare policy in coordinated ways; thereby viewing both punishment and public assistance primarily as modes of governing the poor. Instead of explaining how penal policy, with its multiple determinants and intrinsic purposes (Garland 1990) comes to be aligned with welfare policy—which is similarly complex in its aims and dynamics (Garland 2016)—this approach eliminates the causal question by assuming that there is a single intelligence, a single strategy, directing both penal and welfare policy in a coordinated manner. The two policy domains co-vary because they are not in fact separate: they are two aspects of a single governmental undertaking—the government of neoliberal insecurity.
The problem with this approach is that there is little empirical evidence to support its central thesis. Wacquant insists that the same political actors who pressed for free-market, small state, ‘neoliberal’ policies were responsible for the movement towards ‘hyper-incarceration’ but he is unable to provide empirical evidence of this joint authorship or to explain away the fact that neoliberal principles are implacably opposed to the build-up of a large, expensive state sector, whether devoted to punishment or to anything else.16 Harcourt (2011) is similarly vague in respect of the causal processes that explain the link between ‘free market’ economics and ‘despotic’ forms of punishment such as mass incarceration—a link that he believes to be a historically recurring one.
Problems in specifying causal mechanisms also affect the important work of Lacey and Soskice (2017) who theorize penal practice as a corollary of the varieties of political economy, production regime, and electoral system that characterize the nations in question. Drawing on the ‘varieties of capitalism’ literature—developed by David Soskice and his colleagues—they hypothesize that countries with ‘coordinated market economies’ (such as Germany or Sweden) will be less inclined than uncoordinated ‘liberal market economies’ (such as the US or the UK) to deal with offenders by means of exclusionary penal measures and more inclined to create pathways to employment, education, or training. In keeping with their political economy approach, Lacey and Soskice suggest that the key variable in the relationship between welfare states and penal outcomes is the level of public investment in human capital and that the causal process at work is the patterned action of decision-makers who seek to protect that (p. 89) social investment.17 The causal inference is that coordinated market economies—in which educational pathways and employment outcomes are closely coordinated by corporatist agreements—will be less inclined than liberal market economies to use exclusionary penal measures and more inclined to deal with offenders by creating opportunities for ‘re-entry’ or ‘re-insertion’ via employment, education, or training. On this account, America’s mass incarceration is an effect of the paucity of governmental policies that invest in human capital and promote integration.
There is much to be said for this way of framing the issues. Both welfare states and criminal justice institutions are nested within political economies and are structured by them to some extent. And it is certainly plausible to suppose that governments that invest heavily in human capital will be disinclined to waste that investment by consigning masses of citizens to penal institutions—particularly since prisons are known to de-skill and de-socialize inmates and reduce their potential for gainful employment (Western et al. 2004; Clear and Rose 1998). But even in this more developed account the identification of causal mechanisms remains problematic. Most of the people who end up in the criminal courts—even in relatively integrative societies such as Germany and Sweden—are not those who have benefited from human capital investments but instead those who have dropped out of school and out of lawful employment. So if the authorities hesitate to imprison and exclude these people, this may not be because of the considerations that Lacey and Soskice identify—that is, sunk costs and preserving public investments—but instead because of other factors such as a cultural disposition to value human worth and potential; a negative view of the effectiveness of prisons; or a wish to minimize social divisions and marginalized groups.18 And if that is the case, the causal processes have more to do with culture than with political economy.
This last point leads me to a final explanatory approach that might be described as a cultural causation thesis. In several studies (Downes 1988; Whitman 2003; Pratt and Eriksson 2013) the correlation between high levels of welfare and low levels of punishment is understood as a cultural effect, brought about by the prevalence of a culture of tolerance, respect for dignity, or by theories of individual causality and responsibility. On these accounts it is the underlying culture and the shaping of official action by culturally embedded values that explains the distinctive character of welfare and punishment in any specific nation. Like the ‘conjoined strategy’ approach, this cultural account relocates the causal question away from welfare-penal relations to a more basic, third factor—national culture—that causes both. A similar analytical move is involved when welfare and penal policies are explained by underlying social or demographic conditions such as ethnic and religious homogeneity or solidaristic, egalitarian social relations (Sorokin 1957).
(p. 90) The extent to which public authorities deliver punishment or welfare to people, and the harshness or the generosity of these policies, are a measure of the relationship between citizens and the state and between social groups one with another—a measure of the range and depth of social solidarity and respect for human dignity. But as well as being expressive institutions, punishment and welfare have an instrumental aspect, focused on resources, effectiveness, and externalities. Is it more efficient and effective for markets, or families, or employers to provide welfare than for the state to do so? Does it promote crime if we treat offenders instead of punishing them? Do generous welfare systems reduce crime and poverty? Would other arrangements do so more effectively? These are instrumental, means-ends issues and are necessarily involved in the shaping of penal and welfare policies.
It is certainly plausible to suppose that in societies where communal sentiment, fellow-feeling, ethnic identification, or shared citizenship extend to the poor and the marginal, these sentiments will make for a more lenient penal system and more generous welfare. And it also seems plausible to suppose that societies with deep racial, religious, or class divisions—or divisions between nationals and immigrants—will tend to treat outsiders more harshly and minimize their receipt of public resources. The fact that increased immigration to Western European nations has coincided with increasingly severe penal policies may be viewed as evidence of just this tendency (Downes and Swaaningen 2007). So cultural and social accounts are certainly plausible—and we await the detailed historical and ethnographic studies that will allow us to specify these causal processes with more precision.
Cultural processes may, however, be insufficient by themselves to explain temporal or cross-national variations in penal (or welfare) law and practice. Cultural values and legal policy are not always in close alignment. What the public believes and what state officials do are not necessarily consistent; especially in complex multicultural societies. Cultural currents and social values have an impact on official action only to the extent that they are translated into law and policy by means of political and institutional processes. And, depending on the structure of the relevant political institutions, the impact of specific cultures and values may be muted or amplified, thereby enhancing or minimizing their effect on penal and welfare outcomes. Explanations of policy that are phrased in terms of ‘culture’ or ‘public attitudes’ are therefore obliged to describe how these social attitudes are, in fact, translated—or not translated—into laws and penal practices.
To this end, writers such as Barker (2009) and Garland (2013) have pointed to the structures and capacities of state institutions as shaping forces in the exercise of penal power, focusing on the nature of ‘the penal state’ and its relation to other sectors and characteristics of state government. In contemporary societies, penal policy is enacted and administered by specialist governmental institutions that together form the penal state—just as welfare policy is enacted and administered by the complex of agencies that make up the welfare state. And these penal state institutions vary along a number dimensions such as their levels of autonomy; their control of the power to punish; their preferred modes of penal power; and the capacities and resources available to them. In considering the causal processes shaping penal or welfare policy—and, therefore, the relations, affinities and alignments that connect these two domains—we ought to give due attention to the proximate, system-specific causes that enact and enforce policy, as well as the social background causes that shape these actions.
(p. 91) It also seems plausible to suppose that choices about the use of penal measures are shaped by ‘supply side’ factors as well as ‘demand side’ ones—by what the penal state is capable of doing, and in the habit of doing, as well as what the public wants it to do. So, for example, penal states in nations with extensive welfare systems are likely to have more forms of soft power (i.e. non-penal forms of influence, management and social control) available to them than do penal states in nations with minimalist forms of welfare provision. In other words, a jurisdiction’s penal capacities may be conditioned, in part, by the character and capacities of the welfare state institutions alongside which its penal system operates. The fact that American city and county jails contain large populations of mentally ill, addicted, and homeless persons who, in northern European nations, would be the recipients of social services rather than prison inmates (Gottschalk 2015) is a case in point. And recall that the penal institutions of nations such as Norway are able to utilize the resources of an extensive welfare state infrastructure of social assistance when they choose to manage offenders in the community or resettle them following a period of confinement (Pratt and Eriksson 2013; Lappi Sepalla 2017).
The existence of a dense network of social agencies and welfare practices can provide a platform for the exercise of positive control by the state, acting through schools, community centers, welfare bureaus, social work departments, and so on. An extensive welfare state provides criminal justice authorities with ways of acting at a distance, with forms of soft power, and with an infrastructure of normative controls that they can deploy for control or reform purposes. In nations with a poorly developed social state these methods of extending, projecting, and softening penal power do not exist to the same extent. To deal with problems of crime and violence such nations rely more exclusively on prisons and penal control (Garland 2017). Welfare states shape penal policy ideologically—by establishing conceptions, aims, and values—and also substantively—by providing an operational infrastructure and an array of controls.
Punishment, Welfare, and the Problems they Address
In thinking about ‘punishment’ and ‘welfare’ it is important to locate them in the context of their societal operation and functioning. The punishment of offenders is not a stand-alone enterprise: it operates as one element within a larger set of ordering practices that also includes policing, crime control, and the maintenance of security. In the same way, public assistance is a constituent element of a larger world of welfare provision that includes not just social insurance and public services but also non-state sources of welfare such as employment, family, and community. And while the institutions of punishment and public assistance each have their own distinctive policies and practices, their overall direction and dynamics are necessarily shaped by the larger systems of which they form a part.
(p. 92) Welfare policy operates alongside and in coordination with the apparatuses of social insurance and social security that form the welfare state. Penal policy is one aspect—together with policing, prosecution, courts, etc.—of criminal justice and social control. Viewing the punishment of offenders as one aspect, among others, of criminal justice; and viewing social welfare as one aspect, among others of economic and social security, helps locate these policies in their proper frameworks and connect them with more mainstream processes. These mainstream social and economic processes are, in fact, doubly determinative of punishment and welfare. In the first instance, they generate the rates and patterns of crime and poverty that form the problem environments addressed by punishment and welfare. And in the second instance, these same social and political processes shape the policies that animate the activities of penal and welfare agencies.
Viewing matters more broadly also reminds us that large shifts in the nature of social governance—such as the shift from the laissez-faire capitalism of the nineteenth century to the welfare states of the twentieth, the rise of neoliberalism, or the emergence of social investment policies in the early twenty-first century—will impact the character and conduct of penal and welfare policy. Punishment and welfare are, in vital respects, practices of governing, even if this aspect of their functioning is cast into shadow by ideologies of ‘doing justice’ or ‘meeting need’. Transformations in the nature of political economy, class relations, and modes of social and economic governance will impact the status of the poor and the forms of government to which they are subjected—including the treatment they receive from penal and welfare agencies (Garland 1985; Piven and Cloward 1993; Wacquant 2009).
If penal and welfare policy are modes of governing individuals, they are also, in some measure, problem-solving policies. But it is vital to bear in mind that problems of crime and poverty are not reducible to ‘problem individuals’. Penal sanctions and public assistance target those who fall through the cracks of the mainstream processes of social ordering and social provision. Public assistance addresses problems of indigence and hardship created by the unequal distribution of employment, resources, and life chances. And although individual-level factors play a part in the incidence of poverty, its prevalence is a consequence of labour market processes and the redistributive effects of the state’s employment regulations, tax system, and social provision. In much the same way, although criminal involvement is influenced by individual characteristics and choices, a society’s rates and patterns of crime and violence result from the operation of social institutions such as families, neighbourhoods, schools, and the labour market, as modified by the effects of policing and punishment.
Most studies of punishment and welfare connect the two policy realms directly, interpreting their commonalities as a matter of policy congruence or elective affinity. On this account, penal and welfare policies exhibit common characteristics and recurring relations because the same policy ideas or political strategies are being applied in different policy domains. And these ideational affinities are, no doubt, part of the story. But neither penal policy nor welfare policy operates independently of socio-economic structures or of the problems of physical and economic insecurity to which these structures give rise. Policy-makers are not free to design any policy they choose. They are instead constrained by the need to address the social problems (p. 93) (primarily criminal offending and poverty) that penal and welfare institutions are expected to ameliorate and control. Policies that fail to manage these problems in ways that are regarded as tolerably effective by political and public audiences will, sooner or later, be subject to demands for change. Ideologies of crime-control and poverty-reduction are, in that sense, real constraints on the institutions that claim to be operating in accordance with them.
Of course the phenomena of crime, poverty, and insecurity become ‘social problems’—or not—in ways that are partly determined by the policy-making agencies that define, measure, classify, and address them. And these definitional interactions (between policy and problem) are ongoing and contested. But the phenomena of crime and poverty have external, objective correlates and real world effects that are relatively independent of the policy response, assuming some minimal level of agreement about what is to count as a crime or an instance of poverty. So we can, at least in principle, know on the basis of independent empirical evidence when a policy is failing (because more people experience criminal victimization or impoverishment) and when it is succeeding (because fewer people become crime victims or fall below the poverty line). Data on these issues will always be subject to dispute and all sorts of reporting and recording mediations will affect the numbers. But the point I want to stress is that policy-makers cannot define the issues as they please. Nor can they persuasively claim to be effectively dealing with perceived problems in the face of widespread public experience and evidence to the contrary. The upshot is that any analysis of punishment or welfare needs to pay attention to the problem environment in which these policies operate and to the structural processes that generate the social problems of crime and poverty that punishment and welfare institutions purport to address.
It follows from this that both punishment and welfare ought to be viewed as being, in some part, remedial: each one exists to manage a set of problems, variously conceived as crime, violence, and law-breaking or poverty, insecurity, and exclusion. But it also follows that these underlying problems can never be fully controlled by the practices of punishment and welfare because the economic and social processes that generate crime and insecurity are barely addressed by their after-the-fact remediations. The prevalence of economic insecurity is an effect of labour markets, property laws, and the distribution of life chances created by the larger political economy. The prevalence of crime and violence is an effect of the functioning of families, schools, and communities, and the mainstream processes of socialization, social integration, and social control.19 Penal sanctions and public assistance are post hoc remediations that manage the fall-out of these structures without tackling the generative processes that continue to create the problems. Precisely for that reason, they are always destined to fail to some extent (Hirst 1986; Garland 2016).
(p. 94) To understand the policy options clearly, and to set our expectations for their implications and effects, we ought to view penal policy and welfare policy in their structural context, as remedial practices nested within broader sets of social and economic institutions. And in thinking about punishment and welfare, we ought also to be considering a more fundamental set of interrelated questions—about the relationships between punishment and crime and between welfare and poverty; about the relationship between crime and poverty; and about the social and economic causes of crime and poverty. We tend to think of punishment as being affected by the welfare state whenever social workers get involved or rehabilitative programmes are rolled out. But the biggest impact that welfare states have on penal policy is unseen. It is the tendency of effective welfare state policies to reduce social conflict and to make punishment less central to the repertoires of state control. Welfare states that ensure work, limit inequality, secure families, and support communities are less prone to high levels of crime or extensive use of punishment.20
Penal systems are shaped by, change with, and flow into systems of social welfare provision and the analysis of these relations has proven to be interesting and important. But a more fundamental question we have to ask is how the overarching political economy works to shape the labour market, the distribution of life chances, and recurring patterns of crime and poverty—while simultaneously shaping the policy responses to these problems that go by the name of punishment and welfare. To the extent that we begin to address these more basic questions, we will succeed in reconnecting the sociology of punishment with the most fundamental issues of social and economic analysis.
The original insight that drives the study of the penal-welfare connection is a recognition that both punishment and welfare are modes of control that are intimately and jointly involved in governing the poor (Rusche and Kirchheimer 1969; Garland 1985). But the institutions of punishment and welfare are merely the front-line, street-level modes of governing. A more fundamental form of governing the poor—and everyone else—operates at the level of political economy and the political decisions that shape labour markets, property laws, tax codes, redistributive policies, and the collective rights of workers and corporations (Hacker and Pierson 2010; Gilens 2012). In our concern to appreciate the fate of those caught up in penal and welfare processes, we ought not to forget the larger processes that shape and manage that collective experience.
Selected Further Reading
As an antidote to the ideological distortions that often characterize contemporary discussions of ‘welfare’ and the ‘welfare state’, readers should consult Garland’s The Welfare State: A Very Short Introduction (2016). On the rise of welfare states and their implications for punishment and criminal justice, see Donzelot’s The Policing of Families (1980) and Garland’s Punishment and Welfare (1985). For comparative surveys, see Downes and Hansen’s ‘Welfare and Punishment in Comparative Perspective’ (2006) and also Beckett and Western’s ‘Governing Social Marginality’ (2001). Garland’s Culture of Control (2001) traces how (and why) these two domains were simultaneously transformed in the late twentieth century; as does Wacquant’s Punishing the Poor (2009)—a critical account that owes much to the classic work Piven and Cloward’s Regulating the Poor (1993). Haney highlights the gendered aspects of penal and welfare policies in ‘Gender, Welfare, and States of Punishment’ (2004) and Fraser and Gordon, in their classic article ‘A Genealogy of Dependency’ (1994), trace how gendered power relations suffuse the surface of welfare state practices.
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I am grateful to Mike Adler, Christopher Seeds, and Lesley McAra for helpful comments and to the Filomen D’Agostino and Max E. Greenberg Research Fund of NYU School of Law for its support.
1 In the Foucauldian literature, the concept of ‘the social’ refers to the powers and practices of welfare state agencies but also to philanthropic and private forms of social support and intervention (see Curtis 2002 for a discussion).
2 See for example Bonoli (2005) and Taylor-Gooby (2004). The term ‘New Social Risks’ refers to newly emerging social and economic problems that were not effectively addressed by post-war welfare states: the working poor; single parent families; long-term unemployment, the life–work balance of two-income families, poorly integrated immigrant groups, and so on (Garland 2016).
3 For details of this transformation, see Garland (2016) and Morel et al. (2012). Researchers in the sociology of punishment have traced neoliberalism’s impact on penal policy but so far, with the important exception of migration issues (Melossi 2015), they have had little to say about the rise of the New Social Risks and the adaptive social policy responses that they have prompted.
4 For a different account of this relationship, see Kohler-Hausmann (2015: 89 and 91) who writes: ‘Instead of stepping into the welfare state’s void or representing its antithesis, the growing carceral apparatus often built upon the welfare state…. In many settings, responsibility for handling specific social problems was transferred from welfare programs to law enforcement.’
5 Whitman (2003) points out that in nineteenth-century France and Germany, upper class prisoners and those incarcerated for political offences enjoyed quite extensive amenities. The same is true of inmates in debtors’ prisons in the UK prior to the reforms of the early nineteenth century (Morris and Rothman 1995).
7 An example of a welfarist approach to crime control is the Mobilization for Youth projects of the early 1960s that aimed to address crime and delinquency by expanding economic opportunity and providing remedial education, job training, and social services (Kohler-Hausmann 2015; Hinton 2016). As the 1967 President’s Crime Commission put it, ‘Warring on poverty, inadequate housing, and unemployment, is warring on crime’.
8 Lappi Seppala (2017) notes that ‘welfare states … provide workable alternatives to imprisonment’ (p. 20) and ‘extensive and generous social service networks often function…. as effective crime prevention measures’. Gottschalk (2006) notes that extensive welfare states provide important criminal policy options—such as victim compensation and support, criminal injuries compensation, etc.—that are not available in more market-oriented nations such as the US.
9 See for example Cavadino and Dignan (2006), Lappi-Seppala (2017), Pratt and Eriksson (2013), Lacey and Soskice (2017), Sutton (2004), Downes and Hansen (2006), Beckett and Western (2001), Stucky et al. (2005), and Shannon (2013).
10 Small-N studies examine a small number of theoretically selected cases, using thick description and qualitative methods. They enable in-depth understanding but their results are of limited generalizability. Large-N studies examine a large number of cases and use inferential statistics to identify generalizable patterns. See Kohn (1987).
13 See for example Wacquant (2009: 98–9): ‘[T]he social silhouette of AFDC beneficiaries turns out to be a near-exact replica of the profile of jail inmates save for the gender inversion…. the primary clients of the assistantial and carceral wings of the neoliberal state are essentially the two gender sides of the postindustrial working class’. While there is reason to suppose that, at the state and local levels, there is a trade-off between welfare spending and correctional spending, it is unlikely that there is a transfer of people from one institutional setting to another because penal and welfare institutions by and large deal with different age and gender demographics (Guetzkow 2006; Shannon 2013). For important discussions of the gender issues raised by research on punishment and welfare, see Haney (2004; 2010) and McCorkel (2004).
14 Able-bodied working age men without child dependents in the US are ineligible for the main form of US welfare support—Temporary Assistance to Needy Families (similarly, before 1996 they were ineligible for AFDC). They may be eligible for food stamps and for general assistance but these are discretionary, means-tested, locally administered, and not available in every state. In the US there is no equivalent of the UK Jobseekers’ Allowance and associated forms of income support for which such men would be eligible in Britain.
16 To say, as some writers do, that ‘real-world neoliberalism’ disregards these fundamental principles and produces policy outcomes at odds with them is to negate the value of ‘neoliberal’ as an analytical category. In any case, the (real world) emergence of the campaigning group ‘Right on Crime’ and its neoliberal critique of big penal government confirms the implausibility of viewing the build-up of a penal state as an aim of neoliberal strategy, properly so-called. See Garland (2001) and Western (2009) on the role of neoconservative forces in driving the build-up of the penal state; and on the alliance between neoconservatives and neoliberals within the US Republican and UK Conservative Party coalitions.
17 ‘Human capital’ is a measure of the economic value of an employee’s skill set. The term is used more generally to describe the stock of skills, knowledge, and experience accumulated by individuals in a population. Human capital investments are resources spent by governments, employers, families, etc. to improve these individual capacities and enable individuals to produce greater economic value for themselves and others. See Becker (2008).
18 On this basis, one might see American mass imprisonment as an expression of the low social and political value placed on the lives of poor people of colour, above all young black males who lack a high school degree (cf. Western 2006).
19 For example, in the US more than 60 per cent of black males who fail to graduate from high school spend a period of their lives in prison. The failure of America’s public schools to retain and educate poor black men is thus a major factor in the generation of mass incarceration. So too is the failure of the US labour market to find employment for so many inner city black youths. Social failures generate criminal involvement which in turn feeds the growth of penal populations.