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Crime: The Emergence of an Exceptional Penal Rationale

Jonathan Simon is the Adrian A. Kragen Professor of Law at UC Berkeley and the Leverhulme Visiting Professor of Law at Edinburgh University. On 24th February he gave a lecture at Cambridge University entitled: “Total incapacitation: the emergence of an exceptional penal rationale and its consequences for imprisonment”. He is the author of  “Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear”:

The United States has experienced a dramatic increase in its use of imprisonment over the last three decades. Today it imprisons a portion of its population nearly five times what it was in the 1970s (when it was already very punitive by the standards of its European allies) and many times the portion held in the UK (which is itself well in excess of European norms).

But this quantitative account does not capture the whole problem. American punishment is also distinctly degrading compared to Europe. It practices capital punishment, decades after it was abolished in Western Europe. It employs so called “supermax” prisons
which isolate prisoners in high technology managed prison pods where they are lock down 23 hours a day and have virtually no contact with staff or other prisoners; conditions conceded to endanger the mental health of almost anyone.

Even ordinary prisons (especially in California) lack any infrastructure for education or rehabilitative programming, and in many cases are chronically overcrowded and suffer from sometimes shockingly inadequate medical care.

What explains the commitment of many American states (and California is perhaps the leading example of a much more widely spread pattern) to this kind of degrading punishment and why has it remained largely unchanged despite nearly two decades of declining crime rates, grave fiscal difficulties, and growing scandals involving overcrowding and incompetent medical care?

Sociologists have already taught us a lot about the factors that may drive punitive turns across the globe. The de-legitimation of penal welfarism in the 1970s, left the traditional restraints on penal excess vulnerable to erosion. The growth of crime as an ordinary feature of life within affluent society created a pervasive sense of danger and new common sense of high crime societies. The formation of new political alliances around crime victimization helped define penal populism as a form of governance highly attractive to politicians as well as citizens. The breakdown of welfare as a major tool of government has left the state with fewer
tools to assure social stability.

Rather than adding more to this formidable set of explanations, or seeking to integrate them into a more complex model, it is useful to focus on understanding in more context specific ways how these factors played out in the social and cultural landscape of California (which has the largest prison system in the US and one of the largest in the world) and similarly situated “sunbelt states”.

The decade of the 1970s saw a profound change in how Californians imagined crime and prisoners. In particular two quite specific crime threats, radical prisoners and serial killers, became the locus of a major reworking of the penal imaginary of homeowners and also of prison officers who have emerged as a critical interest group for mobilizing around crime fear.

While historically penal rationales have shaped by elites, these threats in the 1970s produced a new more populist penal rationale, one focused on hermetically separating criminals from the homes of middle class citizens through a massive expansion in both the scale of imprisonment and the length of prison sentences. This new penal rationale, which I call “total incapacitation” to distinguish it from more elite influenced conceptions of incapacitation prevalent in Europe, operates as a block to any substantial movement away from degrading punishments and mass incarceration in California.

While other penal rationales aim at producing security, incapacitation is unique in the degree to which its perceived success is independent of any reduction in the sense of threat from crime that the public experiences. Indeed, incidents of horrific crime simply reinforce the premise that there is no alternative.

Total incapacitation means that the political roll back of mass incarceration is likely to be marginal. The best hope for real change lies in legal institutions, especially courts and human rights laws, that have a unique capacity in contemporary democracies to challenge contemporary values without short term political ratification. Indeed Europe has escaped the worst of the US experience at least
in part because of the influence of dignity norms enforced by the European Court of Human Rights.

Current constitutional litigation in the United States over prison conditions can reshape the penal imaginary in a way that will dissipate the hold of total incapacitation.

For more information on this subject see:


About Professor Jonathan Simon

Professor Jonathan Simon
Jonathan Simon is the Adrian A. Kragen Professor of Law at UC Berkeley and the Leverhulme Visiting Professor of Law at Edinburgh University.

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