Outline and assess Garlands contribution to our understanding of contemporary penality - Assignment Example

In last quarter of 20th century, a major change in the nature of penality was under way. One of the first manifestat~ions was the decline in influence of ‘rehabilitative ideal’, sentencing reforms reduced the rehabilitative sanctions and replaced them with features of modern retributivism. For example indeterminate sentences were replaced with determinate sentences, fixed according to the seriousness of the offence (Hudson 2003). British public no longer seem surprised with the ever increasing prison population, and the amount of surveillance (CCTV) that they are subject to everyday.

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In England and Wales, the change was gradual from a series of acts, 1982 CJA to the 1991 CJA, the movement was away from individualised indeterminate sentencing which considered the criminals circumstances along with the nature of the crime, to standardised sentencing. This affected community penalties as well as imprisonment. Probation changed from being an alternative to punishment to an alternative form of punishment. This shift in theory terms, it represented a further shift towards Weber’s ideal type of a rational and predictable system (Hudson 2003).

Professor David Garland is widely considered on of the most leading sociologists of crime and punishment (Website 1). Garland identifies the modern penal period from about 1895 onwards, this is seen by a shift from the private, ad hoc, and charitable to a more systemically organised publicly funded national agency (Garland 1985, cited in Kemshall 2003). Modern penality was seen by Garland to constitute the individual as the site of intervention and the object of assessment through the knowledge and base of social science.

Individuals are constituted as moral agents, capable of remorse and change with the help of the probation service. (Garland 1985, cited in Kemshall 2003). There has been a move from a calibrated hierarchal structure into which offenders are sorted according to the severity of their offence. Garland sees this as a shift from individualism to individualisation. Repression was replaced by normalisation carried out through reforming techniques. The modern penality was seemed to assume that the normal individual could be trusted to undertake this ‘state induced self control’ carried out through various institutions of the social realm.

Within the criminal justice system, the probation service was seen as a key position in this normalising process (Kemshall 2003). Garland argues that changes in penality should be evident in its ‘material forms’ as well as in its ‘objectives and orientations’. (Garland 1995, cited in Kemshall 2003). With the supposed rising crime rates, the officials have no way of rejecting the notion of getting tougher on crime. Though most are still suffering from the penal policy setbacks of the eighties, they have quickly embraced the ‘get tough quick’ policies (Website 3).

Garland suggests that there is a long list of punitive measures that signify a change in contemporary penality. For example in many western countries there has been an increase in the use of imprisonment, California the new three strikes and you are out rule, parole release restrictions, boot camps and supermax prisons. Garland believe that we should understand this getting tough of crime era with regard to the social contexts in which they are arisen. (Cesaroni 2003).

Garland argument is that through the mass media, crime has been become a predominant backdrop to middle class life which was, until the later half of the 20th century were reasonably insulated from crime. Crime is no longer something that happens to other people. Garlands term of ‘liberal elite’ (cited in Cesaroni 2003), the educated middle class and public sector professionals are more touched by everyday petty crime, it is the fear that fuels the desire for more protection.

Garland also refers to this as the ‘decline of the sovereign state’, (Website 6). The cultural conditions and the perpetual crisis of high crime rates identified by garland, encompassing as they do risk and blame, on forms of govern mentality, and on the mentalities and social and economic contexts of late modernity must be considered if contemporary penality is to be understood. Although, some writers argue that we are witnessing the end of penal modernism and the arrival of post-modern penality (Pratt 2000, cited in Hudson 2003).

That contemporary penality is the penality of late modernity rather than post modernity. At the beginning of the contemporary period, many who sensed a rise in penality did not expect the enormous rise in imprisonment, the emphasis on punishment and control in community penalties, the increasing imprisonment of women, regardless of responsibilities towards children also the reintroduction of the death penalty. It was understood that contemporary penality bought about a mass imprisonment society.

This is the focus of Garlands book Punishment and society (2001) (cited in Hudson 2003). In this book Garland gives a two part definition of this new phenomenon of mass imprisonment, the first feature is that the imprisonment rate and prison population size are markedly above the historical norm for societies of the same type, and the 2nd feature is that excessive imprisonment is concentrated on certain groups of the population.

The relationship between culture and penality and the role of the state, institutions and ideology are explored by reference to Garland’s work on the social functions of punishment. In his work the Marxist, Durkheimian, Foucauldian and Weberian theorists are examined in some detail. Most sociological accounts of penal change are located in roots in the culture of late modernity. The cultural analysis has been synthesised greatly in Garland’s book The Culture of Control (2001) (cited in Hudson 2003).

It moves beyond Pashukani’s hypothesis of the equivalence of wage labour and imprisonment, incorporated by Melossi and Pavarini. Starting from what he describes as a ‘banal’ observation found throughout the revisionist histories of imprisonment, that penal practices will reflect wider cultural formations, Garland brings into consideration the cultural resources (ideas about justice, humanitarian and religious ideas, role of government etc) which criminal justice policy-makers and others have at their disposal.

These form a cultural complex which influences the natural of penal practices. Garland refers to culture as, ‘all those conceptions and values, categories and distinctions, frameworks of ideas and systems of belief which human beings use to construe their world and render it orderly and meaningful. It thus covers a whole range of mental phenomena, high and low, elaborated and inarticulate, so that philosophies, sciences and theologies are included alongside traditional cosmologies, folk prejudice and plain common sense’, (quoted from Cook 2003, page 2).

Garland point to the term of ‘banal observation’, that penal practices will reflect the wider cultural forms, highlighting the cultural resources on which penal policy makers and practioners draw, for example, ideas of justice, religious ideas (Hudson 2002). Garland brings the theme of culture together with that of crisis. Crisis is seen as a recurrent theme in literature relating to punishment and control, Garland argues that penal change comes about because of some order of crisis, but the response to this will depend on the cultural resources available at the time (Hudson 2002).

Garland links his cultural resources to that of Norbert Elisa’s work in the ‘civilising process’ (Elisa 1978, cited in Hudson 2003), suggests that in modern era cultural complex was such that sensibilities required that the infliction of pain, carrying out the bodily functions, and acting out emotions and impulses should be repressed if possible, if not carried out in private.

The importance of culture is that whatever the aims are of punishment, policies will be developed that are consistent with rationalities and sensibilities of that era. (Hudson 2003) In his more recent work, Garland has expanded his theme of culture, with regard to theme of ‘cultural preconditions’ of penal trends. He incorporates the ‘deeper trends’ noted by social theorists of late modernity as well as the middle range ideas of authoritarian populism, new penology and post social control (Hudson 2003)

Garland identifies as one of his cultural prerequisites the important social fact of high crime rates becoming accepted as the normal state of affairs. Late modern societies are seen as high crime societies (Garland 2000, cited Hudson 2003). Garland, also looked at the cultural theory of punitive ness, he believes that we should look at the cultural aspects of punishment in modern western society, which also includes religion (Cook 2003).

Hence Garland conceptualises punitive mentalities and sensibilities that provide the cultural support for structural systems of punishment. Punitive mentalities are ways of thinking about punishment, punitive sensibilities are ways of feeling about punishment, Garland suggests that religious tradition are an important source of both. Jock Young further describes how what we come to understand as ‘normal’ becomes overly idealised and hence any deviance comes to be regarded as ‘worse’.

So punitive mentalities emerge within a culture that forbids certain acts and responds with controlling punishments to reaffirm cultural beliefs and structural relations (Cook 2003). Garland suggests that widespread expression of punitive ness both by politicians and the public has interestingly not corresponded with the increasing crime rates. Though crime rates in many countries are actually in decline, people appear to believe that crime, is still increasing and correspondingly still hold punitive views on how best to punish.

He brings the analysis of cultural conditions together with the concept of crisis. At the end of the 20th century, according to Garland there was a sense of perpetual crisis, creating a demand for penal innovation, leading to plans after plans to tackle offending with new criminal justice legislation, and constant changes to rules for prisons, probation, the police and the courts. The responses to a crisis maybe various but, are all influenced by cultural characteristics of late modernity.

Garland believes that not enough theoretical attention has been paid to the cultural forces giving rise to penal institutions (Cook 2003). The dual nature of the contemporary penal policy has been noted by a number of commentators, Garland (1996,97,2001) discerns the twin but interlinked approaches of an economic crime rationality based on prevention and regeneration within primarily economic discourse of crime control, and an expressive rationality, based on harsher tougher penalties and cost with an expressive, punitive rationality.

Crime control in advanced liberal societies has been expressed by Garland (2000). How to manage crime in societies where the fear of crime is endemic, the high crime rates are a normal social fact, penal welfare approaches were seemed to have failed and the citizen sees the state as failing to deliver adequate forms of security. Garland says that viewed sociologically, surveillance has always been a part of social control and quite apart being a adjunct of modernity (Cavadino 2002).

Two of the most important strands in the criminology of punishment and control have been that of the balance between conformity-producing and deviance-repressing modes of control and the ways in which punishment and control are reflections of more general cultural trends (website 5). Garland in his paper ‘The punitive society’ (cited in Website 2), suggests that the character of recent crime control policy is not so much punitive as ambivalent.

The social fact that crime rates are getting higher, together with the increasingly recognised limits of state action as a means of governing crime, have created a new problem for policy makers and politicians. The term ‘social control apparatus’ expresses that there is a thick dividing line between criminals and non criminals our suspicion of and hostility towards criminals becomes increasingly intensified (Garland 1996, Bauman 2000). A different pattern of social control may be emerging from that which formed the basis of Cohen’s visions.

The impact of globalisation and the insecurity of risk society have contributed to what Garland has called an ‘institution of crime awareness’, individuals are constantly aware of and make constant adoptions to crime threats. This on its own provides a more fertile ground for more emotive and more punitive attitudes to punishment to take root. This everyday awareness is characterised by precariousness and insecurity, the constant need for better security without relying on the state for it (Garland 2001).

So the result has been a ‘crime complex of late modernity’, the constant awareness of crime potential, constant spectre of victimisation and the constant need to self care against crime risks, produces citizens not only adaptive to the daily reality of crime rates but also unsympathetic to the needs of the offender. The sympathy is placed with the victim, and consequently reintegration is seen as unrealistic (Kemshall 2003). Garland describes punishment as ‘legal process whereby violators of criminal law are condemned and sanctioned in accordance with specific legal categories and procedures’ (1990:17) (quote from Cook 2003 page 3).

Garland has been criticised for his over legalistic definition of punishment and does not take into account punishment that occurs outside the legal realms, such as spanking children (Cook 2003). Garland 1990 (cited in Hudson 2003) argued that punishment should be viewed as a cultural phenomenon in its own right, rather than as a form of social control. In the late 1990’s the cultural analysis of punishment became reconnected with cultural analysis of the more general response to crime, if not with social control in its wider sense.

In conclusion, Garland argues that Weber has been a major influence on some Penalogical work including Foucault often without receiving due acknowledgement. (Cavadino 2002), in other words, he does accept the views of other acedemics, but rarely quotes or uses their works with regard to his own, only in the way of criticism, this can be seen in his book, Punishment and Modern Society, where a whole chapter was dedicated to the critique of Foucault’s work.

Also another criticsm of Garland is that he avoids making any attempt to link that sociology of punishment to any wider social theory (Cavadino 2002) With regard to contemporary penality, the question on everyones lips is, does prison actually do its job? The question is if prison is seen as not to be working in the contemporary society then why does the state continue to use such form of punishment? Why does the state increasing reliant on punishment? The more we exercise control over someone’s behaviour the more violations we will find (Junger-Tas 1994).

Focusing on theoretical and analytical attention on aspects of punishment, for example the lengthening of prison sentences, requires that we attend to the financial and business elements contained therein. To ignore business in any form of analysis which seeks to explain general patterns in criminal justice, especially patterns of punishment capable of general profit, is a serious error, and hence work of academics such as Garland is extremely influential and important with regard to understanding contemporary penalty (Website 4).

From the point of view of contemporary penality and the new system of punishment and control, there no longer exists a universe of free and equal people which coincides with others. Now there are categories imposed socially onto people that divide people apart. So although the law keeps its central place in modern penality, it is no longer alone. The new system brings rise to themes such as probation and after care and preventive detention authorities which makes the new system a great deal more controversial.