Contemporary penal trends: modern or postmodern?
British Journal of Criminology
January 01, 1998 | Lucken, Karol |

The postmodern argument in the punishment literature is in its formative beginnings. The achievements in applying a postmodern framework to the study of punishment, thus far, have been speculative and empirically narrow. Consequently, a question that remains is `do postmodern or modern conceptions capture the form and function of contemporary penality'? The current study addresses this question by exploring contemporary penality as it exists for those working in the penal system. Three salient trends are identified, penality as a balancing act, corporate penality, and offender subsidization of penality. A modem and postmodern interpretation are considered in the qualitatively of these trends. It is concluded that contemporary penality is not qualitatively different from past penality, and therefore, is best understood in the context of modernity.

The concept postmodern has been employed increasingly in the academic literature as a metaphor for the cultural condition of post-World War II society, and subsequently as a framework for analysing various contemporary social transformations (Bellah 1970; Santos 1995). The postmodern condition has been defined as an assault on universal truths, an attack on the hegemony of bourgeois society (Wilson 1995), `the rejection of the unity of knowledge and the myth of emancipation' (Jameson 1984), or, simply, the antithesis of anything modern.1 However, the structures and conditions of a postmodern society have not been precisely articulated. It has even been suggested that postmodernism is not certain what sort of social existence it seeks to negate (Manning 1991), and may be more certain about what it is not than what it is (Garland 1995). Given these ambivalencies, the usefulness of postmodern interpretations has been the subject of considerable debate (Cohen 1990, 1993; Currie 1992; Denzin 1991; Grossberg 1988; Handler 1992; Hunt 1990; Melichar 1988; Seidman 1994).

Postmodern assessments have only recently surfaced in the criminological literature (Arrigo 1995; Brodeur 1993; Cohen 1990; Einstadter and Henry 1995; Friedrichs 1994; Henry and Milovanovic 1993; Milovanovic 1989; Pfohl 1994; Schwartz and Friedrichs 1994; Smart 1990). Overall, the arguments emerging from postmodern assessments of crime and criminal justice have been characterized as ambiguous and controversial (see Cohen 1990, 1993). For example, in a discipline that has defended its legitimacy by way of the scientific method, how does one assimilate a perspective that `deconstructs' the premises of scientific inquiry? Nevertheless, postmodern conceptions have framed a number of criminological issues including law enforcement (Manning 1994; Reiner 1992) theory and discourse (Barak 1994; van Dijk 1989), and punishment (Feeley and Simon 1992; Garland 1995; Howe 1994; Simon 1993; Simon and Feeley 1995). Of particular interest to this article is the concept's application in the punishment literature.

The postmodern argument in the punishment literature is in its formative beginnings, with the central themes being developed most thoroughly by Feeley and Simon (1992), Simon (1993), Simon and Feeley (1995) and Garland (1995). Feeley and Simon contend venality is anti-modern largely because it is anti-rehabilitation in its discourses, objectives techniques.(2) They argue `old penology' goals aimed at normalizing individual offenders have been replaced by `new penology' goals aimed at regulating groups of offenders (emphasis added). As a result, internal system performance, not offender performance, has become the standard by which penal system effectiveness is judged. Simon and Feeley (1995: 174) claim the `new penology' is also represented by a growing schism between academic/practitioner discourses about crime and punishment and political/public discourses about crime and punishment, the former being grounded in the `new penology', the latter in the `old penology'.

In Poor Discipline, Simon addresses the question `Are we postmodern?' (p. 247). He affirms the crisis of penological modernism, namely the absence of a penal vision that convincingly communicates what penal systems can do about crime, and adds that certain penal practices are indeed indicators of a postmodern penality. These indicators include the `auditing' of power, whereby discretion in practitioner decision making is curtailed, and an increasing reliance on community-based programmes for containing rather than reintigrating offenders (p. 248).

Implicit in these postmodern arguments is the assumption that current penal practice has undergone a decisive break with past penal practice (Garland 1995: 197). Garland questions this assumption as well as the utility of postmodern conceptions for advancing understanding of current penal arrangements. Specifically, he argues that many of the `postmodern sightings' are better observed as extensions of penal modernism (p. 197). While Garland does not completely dismiss the plausibility of a postmodern thesis, he advises that attempts to interpret contemporary penology must proceed at a more concrete level, heeding both the distinctions between rhetoric and reality, and those between transitory and fixed (p. 204).

Lemert (1993), in fact, has succeeded in making these distinctions in his study of probation in four. California counties. Lemert specifically tests the assertion that probation has entered into a bureaucratic-managerial stage characterized by the effective control of offenders. What he finds are probation departments overwhelmed by increasing caseloads and diminishing resources and probation staff adapting through the old practice of `bankloading', namely the supervision of only the most serious cases. Lemert concludes from this finding that the realities of probation in California counties `belie any claim that a revolutionary new form of social control has been implemented' (p. 460).

To date, the achievements in applying a postmodern framework to the study of punishment have been speculative or empirically narrow at best. Conclusions about contemporary penality have been derived from analyses that are either removed from the daily experience of penal practice or limited to a single dimension of actual penal practice (i.e., probation caseload supervision). Consequently, a question that remains is, do postmodern or modern conceptions capture the form and function of contemporary penality?

This article addresses this question more fully by examining contemporary penality on a number of fronts, from the perspective of those working in the penal system. Duff and Garland (1994: 1-2) argue the aims, activities and values of penal actors must inform the dialogue on punishment, claiming any sociology of punishment which ignores this dimension is likely to misunderstand the nature of the institution (Duff and Garland 1994: 2). Among the areas examined then are prevailing penal philosophies, penal programme objectives and penal practices. What emerges from this examination are three trends that are interrelated, namely penality as a balancing act (e.g., simultaneous punishment and treatment) corporate penality (e.g. private sector involvement) and the offender subsidization of penality (e.g., offenders paying for their punishment). Postmodern and modern interpretations are considered in the analysis of these trends, and it is determined that `old' penal formations firmly co-exist with the `new', and that much of what is deemed `new' is merely an extension of the `old'. The article concludes from these findings that contemporary penality is not profoundly different from past penality, and, therefore, is best understood in the context of modernity.

Methods

The assumption underlying this study is that adequate description and understanding of contemporary penality depends upon the perspectives of those who shape and administer its mission. Specifically, the goal is to picture the empirical social world as it exists to those under study rather than to those who study. To comprehend this perspective requires multiple data gathering techniques. Specifically, data for this study were derived from a number of sources including participant observation, interviews and documents. The participant observation included employment as a probation officer in a Florida county between 1989 and 1991 and weekly assistance in a sex-offender counselling programme, in this same county, for one year in 1996. Interviews were conducted with individuals involved with or employed in corrections at the county, state and national levels. At the county level, semi-structured and structured interviews were conducted with 18 sanctioning agents (judges and those involved in the administration of corrections) in a major Florida county. These sanctioning agents were selected because of their direct involvement in the development and/or operations of a nationally recognized County Corrections Division's jail and community-based programmes. Thus, the interviews were guided by such questions as `What factors contributed to the development of the Corrections Division "continuum of care" strategy?'; `What is the purpose of corrections?'; `What is your role/and or function in dealing with offenders?' and `What factors most shape your daily decision making?' Among the agents interviewed were four county commissioners who had held office before and after 1988, the Assistant District Attorney, whose involvement in county corrections also predated 1988, and the nationally recognized Director of the County Corrections Division, whose tenure with the county began in 1988. Interviews were also conducted with four corrections division administrators, each of whom had been employed in the field of corrections for 20 years. Prior to their current positions, these administrators worked in a number of penal programmes including work release, pre-trial diversion, home confinement, pre-sentence investigations, and probation. Also interviewed were four county judges and four county probation officers who presided over misdemeanour and traffic cases. Corrections Division documents (namely inter-office memoranda, reports, and newsletters), covering the years 1988 to 1996, were also utilized.

In 1995 and 1996 interviews were also conducted with 30 individuals directly involved with or employed by the Florida Department of Corrections. Department employees were selected from all levels of the correctional system. Represented in this group was the Secretary of Adult Programs, the Director of Probation and Parole Services, the Probation and Parole Correctional Programs Administrator, a Circuit Administrator for Probation and Parole, a Regional Probation and Parole Staff Development and Training Manager, and staff supervisors and community corrections officers in probation, parole and community control/home confinement programmes for three major counties. Florida's Probation and Parole Services oversee the administration of all intermediate sanctions such as home confinement, intensive supervision, and drug offender probation. Six of the individuals interviewed had been employed in the correctional field for more than 20 years, three had been employed for less than five years, and the majority had been employed approximately from 10 to 14 years. Collectively, their work histories included juvenile justice, prisons, probation and restitution centres, pre-sentence investigation units, probation, parole and home confinement. One final interview was conducted with a counsellor from a nationally based private treatment agency that provides batterer intervention, substance abuse and sex-offender programming.

Initially, the interviews were semi-structured and exploratory, guided by such questions as `What factors most shape your daily decision making?'; `What is your role, function, and perspective on corrections?'; `What are the major trends in corrections?', and `How are things the same or different in corrections?'. Following the exploratory phase, a structured inter-view schedule was constructed based upon the responses from the semi-structured interviews. Florida Department of Corrections documents were also obtained to further assess the goals, programmes and intricacies of offender supervision. These documents included annual reports, memos, workshop materials, the curricula for correctional officer training, written monthly reports, offender contact and daily log sheets, risk/needs assessment forms, and pre- and post-sentence investigation reports.

National level data were also obtained through documents and interviews. These documents included the prior literature and reports prepared by the American Probation and Parole Association (APPA) and the Bureau of justice Assistance. The same two-phase interviewing process (exploratory and structured) was employed with two American Probation and Parole officials and a federal probation and parole supervisor based in the largest federal probation juridiction in Florida.

Collectively, these techniques enabled an empirically grounded analysis of penal trends. The various forms and functions of penality were initially constructed through participant observation and unstructured interviews. These initial findings were then further substantiated through structured interviews, documents, and the prior literature. The final results of this investigation are subsequently discussed.

Contemporary Penal Trends

The major characteristics of contemporary penality can be condensed into three interrelated trends. These particular trends, however, do not provide an exhaustive account of all penal characteristics. For example, the politicization of penal policy and the monitoring of discretion (Simon and Feeley 1995; Simon 1993) are not included. However, the trends do represent a summary of major penal characteristics as articulated by a variety of sanctioning agents.

Penality as a punishment/treatment balancing act

Political, public and academic rhetoric (see Allen 1981; Feeley and Simon 1992; Logan and Gaes 1993; Wilson and Herrnstein 1985) strongly suggests that rehabilitation has faded from contemporary penal practice. However, upon close inspection, a number of indicators point to the persistence of rehabilitation, albeit in conjunction with punishment. These indicators are found in the official language of penal objectives, programme components, and sanctioning agent perceptions of the system, self and offenders.

Much of the language employed to articulate penal objectives is indeed reminiscent of an earlier penal era. To illustrate, The American Probation and Parole Association (APPA) has called for a range of sanctions and services that provide safety through `. . . individualized sentences for offenders' (APPA 1995). A nationally prominent Florida county corrections division has redefined its mission as ` . . . breaking the cycle of recidivism through treatment and successful reentry of inmates' through a `continuum of care' (Orange County 1988). Further, the Florida Department of Corrections has defined its treatment approach as providing a `continuum of care' (Florida Department of Corrections, 1995). The California Department of Corrections' new Continuity of Care Project emphasizes a `therapeutic environment . . .' for soon to be released offenders (Bureau of justice Assistance 1994). And, New Hampshire's felony pre-trial diversion programme recognizes the `limited rehabilitative potential of traditional sanctions, the efficiency of rehabilitative efforts ... and the need for community involvement in the rehabilitation and reintegration of offenders' (Bureau of Justice Assistance 1994).

The content of penal programmes also appears to be consistent with these formally prescribed rehabilitative objectives. National, state and local penal practices are dominated by various classification schemes and mandated treatment (see Clear and Gallagher 1985; Schumacher 1985; Simon 1993). For example, Byrne and Pattavina (1992) note that 56 per cent of all adult intermediate sanction programmes in the US conduct offender needs assessments. Client management classification or needs assessment instruments probe family history and relationships, personal relationships, school adjustment, employment history, personality traits, mental health, and the immediate circumstances surrounding the criminal event for the purpose of guiding offender placement decisions. For example, penal programmes utilize specialized caseloads to match particular offenders (e.g., drug, domestic violence, youthful, mental health, mentally retarded, HIV infected, sex) with treatment certified or specially trained community corrections officers (Abadinsky 1982, 1994; Champion 1990.

Additionally, treatment has become an expected court or legislative ordered condition of supervision for drug, sex and domestic violence offenders. Equally common are court or programme referrals to anger management, educational, vocational and life skills counselling for offenders in general (Blomberg and Lucken 1994; Byrne and Pattavina 1992; Lucken 1997; Pearson and Harper 1990; Petersilia and Turner 1993). Drug intensive supervision probation programmes in Washington, New Mexico, Georgia, Virginia and Iowa stress participation in substance abuse treatment, education, and employment programmes, and maintain counselling participation rates that consistently exceed 38 per cent and often reach 100 per cent (Petersilia 1992: 30). In the state of Washington, sex offenders must consent to participation in treatment to be considered eligible for probation. And MacKenzie and Parent (1992: 110) note that, in boot camps, time spent in rehabilitative activities often outweighs time spent in physical training and work. Offenders in Alabama, Arizona, Mississippi, New York and Louisiana boot camps spend an equal or greater amount of time in rehabilitation activities compared to non-rehabilitation activities, and Texas, Oklahoma and Illinois have received federal funding to develop programmes that specifically address offender needs (MacKenzie and Parent 1992: 110).

In fact, the volume of offender referrals to treatment has prompted state correctional systems to contract with these treatment agencies for a number of mental health and substance abuse services. Florida and Texas have contracted for various psychological, substance abuse and educational services and the American Probation and Parole Association (APPA) has encouraged intensive supervision programmes to do the same (APPA 1994; Jensen 1987). In the fiscal year 1995-96, Florida dispersed a total of 25 million dollars to contracted mental health and substance abuse providers for offenders supervised in the community (interview data). Not surprisingly, the offender treatment industry has greatly expanded. One treatment vendor admitted, `everyone is throwing their hat in the ring, it [offender treatment] is a pipeline to money'. In the state of Florida, 79 different agencies operate batterer intervention programmes in 144 different locations (Florida Department of Corrections 1996). In 1996, there were approximately 2,000 known institutional and community-based sex offender programme providers throughout the nation. In 1986, there were approximately 700 (Safer Society 1996). Three hundred licences were issued to 80 agencies in a central Florida district to operate substance abuse programmes, and, in one county, alone, 40 agencies have been licensed for this purpose. In this same county, sex-offender and anger management counselling is currently provided by 15 different vendors.

Probation officers claim contracts have vastly increased treatment resources and the ease with which offenders can be admitted to programmes. `Before it was impossible to get offenders into treatment, either because there was no place to send them or the few places that were available were filled to capacity' (state interview data). Community corrections officers employed since 1972 state that prior to the contracts, probation only `aspired to rehabilitate'. Rehabilitative efforts were more of an `assumption than a reality' (state interview data).

Contracts with residential and non-residential treatment programmes have served the added purpose of enabling graduated sanctions following certain programme violations (see Florida Department of Corrections 1995c; Bureau of justice Assistance 1994). Consequently, conditions intended to be punitive often serve rehabilitative ends. Several community corrections officers state that drug testing is more often used as an `intervention' or `diagnostic' tool than a punitive tool (state interview data). Positive drug tests are more likely to lead to referrals for treatment than probation revocation and subsequent incarceration. Officers state that `judges don't want to see violations on a first or second positive result'. Officers are expected to `work with the offender' (state interview data).

Availability of offender treatment is not necessarily limited to community corrections programmes. A US Department of Health and Human Services survey reveals that, between 1990 and 1994, the number of offenders participating in treatment programmes housed in correctional institutions increased, while participation in all other treatment settings (e.g., hospitals) decreased (US Department of Health and Human Services 1995). In Florida alone, funds appropriated for institution-based substance abuse programmes have increased substantially. In the fiscal year 1992-93, treatment funds set aside by the legislature totalled $1,146,717 and for 1996-97 this figure grew to $5,308,609. This constitutes a 363 per cent increase, despite a 22 per cent decline in drug offence admissions and a 32 per cent increase in the prison population for this same time period (Florida Department of Corrections 1996).

By incorporating instruction in time and money management, responsibility for self and family, and employment and parenting skills, penal treatment programmes often engage in a form of social and behavioural engineering that Rumgay (1989: 182) has termed a `moral force feeding' (see also Gordon 1990: 117). In fact, Moral Reconation Therapy (MRT) programmes have been implemented in correctional institutions and community corrections programmes in 21 states, among which Connecticut, Oklahoma, Florida, Montana, Indiana, Ohio, California, Tennessee and Washington are included (Bureau of justice Assistance 1994; Little et al. 1994). MRT-based programmes propose to `reeducate clients socially, morally, and behaviourally' (Little et al. 1994). These programmes seek to instil appropriate goals, motivations, and values by enhancing self-concept, decreasing hedonism and developing higher stages of moral reasoning (ibid.). Institution-based treatment programmes operated by American agencies have also been implemented in prisons in England, France and Egypt (interview data).

Sanctioning agent perceptions of system, self and offenders are that the penal system is engaged in a balancing act. In communicating their perceptions of penal system philosophies, veteran penal administrators and line staff state `we have gone from rehabilitation to punishment to rehabilitation', `from hard-line to keep them in the community', and `from rehabilitation to punish to finally putting it altogether'. Others indicate `the vision is now clear, punish and treat go hand in hand', or `we've now achieved a balance' (state interview data). One state supervisor suggested `the goals always pertain to rehabilitating and stabilizing the offender, punishment, restitution and the victim, just different ones come into focus at different times'. Even among prison wardens throughout the US, the rehabilitative ideal is overwhelmingly supported, ranking second in priority only to custody/public safety and institutional order (Cullen et al. 1993: 69).

Perceptions of self, how sanctioning agents view their roles and activities, also reflect attempts to balance punishment and treatment objectives. For example, judges claim they use their position to punish offenders and protect the community (county interview data). But, as one judge stated, his role was also to exact `positive change', particularly for offenders viewed as `salvageable'. Other judges claim `offenders need to feel they have accomplished something at the end of their probation' and`it is their responsibility to push offenders into raising their own expectations and abilities' (county interview data).

Community corrections officers comment that`new roles have been added on to the old making it difficult to focus on any one thing' (state interview data). Those employed in the early 1970s state that `before all there was to do was nag offenders about not getting arrested and keeping a job'. `Without the tools or resources to rehabilitate what else was there to do?' Officers claim they now provide commonsense counselling and monitor compliance with a myriad of conditions, and leave the `therapeutic counselling [or treatment function] to the experts' (i.e., treatment agencies) (state interview data; see also Lovell 1985). Officers and `experts' alike then advise offenders who are typically described by them as `lazy', `undisciplined', `irresponsible', `anti-authority', `directionless', and suffering from `low self-esteem', `dual addictions', and lives that are `dysfunctional' in `disarray' and `without a credible source of values' (state interview data). In short, `two cultures exist among community corrections officers, the frustrated law enforcement officer, and the frustrated social worker' (state interview data).

In sum, `penality as a balancing act' reflects a system where punishment and treatment exist as complementary rather than mutually exclusive functions. Penal programme objectives and components, and penal actor perceptions each suggest the penal system has not rid itself of its rehabilitative function. At worst, the penal system has merely allowed the private sector to play a role in this function, as it has in so many other functions, including punishment (private prisons).

Corporate Penality

In the battle to trim government waste and excess, the corporation has emerged as the dominant model for structuring penal system operations. `Corrections as a business' (Florida Department of Corrections 1992) calls for `total quality management' (state interview data; see also Basile 1994; Florida Department of Corrections 1995a,b), or what Waldron and Turner (1995: 177) refer to as `reinventing corrections through project management'. This approach insists upon explicitly stated organizational missions, objectives and goals, `product' enhancement through process improvement and performance-based measures in connection with `customer' or `stakeholder' needs.(3) Penal system customers can include the judiciary, victims, taxpayers, offenders and their families, law enforcement, treatment vendors and penal system personnel (Florida Department of Corrections 1995a).

The corporate image of penal systems has also been constructed through private sector involvement in the supply of a variety of correctional goods and services (Christie 1993; Cohen 1984; Lilly and Deflem 1996). Private prisons provide one of the more controversial examples of this trend (Borna 1986; Crants 1991; Johnson and Ross 1990; Lampkin 1991; Logan and Rausch 1985), however, more typical examples include private operation of half-way houses and community correctional centres, and contracts with various treatment, educational, and drug testing vendors. Though private sector contracting has been implemented largely to reduce correctional costs, it may, as one administrator conceded, have the unintended effect of making it more difficult to justify corrections `existence'. The fear that corrections may well `contract themselves right out of business' is heightened by conservative politicians who are more receptive to private sector initiatives (state interview data, also Lilly and Deflem 1996: 3). For example, in Florida, private substance abuse centres have lobbied for the right to supervise multiple DUI offenders (those convicted several times of driving under the influence of drink or drugs) and newly formed correctional corporations have lobbied for the right to supervise third degree felons.

To compete in this burgeoning correctional market, penal systems will have to promote a more positive public identity by `showing the public they are getting a better bargain from the state'. Florida corrections' agencies are proactively forging ties with the community through citizen volunteer programmes, speaking engagements at schools and civic organizations, and various citizen prison tour programmes. One administrator stated, `the time has come where we need to tell people what we are doing and dispel the myth that corrections is only about releasing violent offenders to the community'. Another added, the public is confused about what we do and we need to inform them about our many successes'. Representatives from the Florida Department of Correction's Public Speakers Bureau found that public outcry is often quieted when citizens realize offenders literally pay for their crimes through community service, fines, restitution and cost of supervision (state interview data).

The trend `corporate penality' is indeed multi-faceted. At one level, there is increasing private sector involvement in the provision of a number of penal sanctions and services. Equally, in corporate-like fashion, penal systems are also engaged in developing [marketing] strategies to improve their public image, as illustrated by the latest catch phrase, `building bridges to the community'. At another level, a private sector vocabulary has been introduced, though it is rarely employed in day-to-day practice. Nevertheless, as the following trend illustrates, the customer rhetoric has, for offenders, been literally translated into practice.

Offender subsidization

In response to public demand for simultaneous protection from crime and higher taxes, increasingly, offenders are being expected to bear the costs of crime and punishment. To defray expenses, a range of financial penalties has been imposed that include community supervision fees, incarceration fees, fines, and various other court-ordered payments (Cole 1992; King 1989; Parent 1990). Parent (1990: 1) notes that between 1970 and 1987, more states enacted correctional fee statutes than in the previous 125 years. Seventy-four per cent of the 43 states that now require probation or parole fees did not require such fees until after 1970 (ibid.). For example, since their implementation in the early 1970s, cost of supervision fees in Florida have increased from $10 per month to the present maximum rate of $128 per month (indigent offenders are required to pay $50 per month). As of 1994, cost of supervision waivers in Florida have been eliminated altogether (state interview data).

State legislatures have also raised the ceiling on fine amounts (Hillsman et al. 1984), and court costs have increased to serve a variety of criminal justice funds such as victim restitution, crime compensation and drug programmes. New Jersey requires payments of $25 to $10,000 to a violent crime compensation fund for crimes involving disorderly conduct or violence, and payments of $500 to $3,000 for a drug enforcement demand reduction penalty for drug related offences (Cole 1992: 145). In certain Florida counties, offenders are incurring the costs associated with their arrest, prosecution and detention. Fees have been imposed to absorb the cost of breathalyzers, gloves and fingerprinting, $100 to $130 fees have been imposed per felony or drug conviction, and health care and incarceration fees have been imposed for offenders serving time in jail or prison. The proliferation of offender fees has even prompted the development of computer programs (COPS--Court Ordered Payment System) that record payments for up to 13 different offender accounts, transforming the Departments of Corrections into the `Departments of Collections' and community corrections officers into `bill collectors' (state interview data).

Interpreting Penal Trends

The penal trends identified and examined in this article are consistent with the trends identified in the prior literature. Several scholars (Feeley and Simon 1992; Bottoms 1983; Basile 1994; McWilliams 1987; Waldron and Turner 1995) have cited resource management, internal system evaluation and classification as important features of contemporary penal systems. Numerous other scholars have documented the merging of the public and private sector in penal practice (Christie 1993; Cohen 1984; Crants 1991; Lampkin 1991; Lilly and Deflem 1995). Further, Gordon (1990: 106) has recognized the sustained significance of rehabilitation to penal line staff. Each of these patterned characteristics can be subsumed within the broader trends of penality as a balancing act, corporate penality, or offender subsidization. However, while there is consensus on what contemporary penality entails, the meaning of contemporary penality is a matter of considerable controversy, as evidenced by the developing postmodern/modern debate (Lemert 1993; Garland 1995; Feeley and Simon 1992).

The following discussion assesses the adequacy of postmodern and modern conceptions for interpreting contemporary penality. This discussion involves a presentation of both a postmodern and modern interpretation of the major findings. This comparative analysis focuses on the extent to which current penal practice departs from past penal practice, and the extent to which specific postmodern and modern themes find expression in the trends identifed.

Postmodern penality argument

Postmodernism is premised on the rejection and redefinition of traditional power structures, values and paradigms. Therefore pluralism, consumerism, eclecticism and ambivalence have been identified as defining features of contemporary society (Seidman 1994; Denzin 1991; Baudrillard 1988). The three penal trends identified in this article exhibit many of these postmodern themes. For example, in a punish/treat approach, one can detect traces of postmodernisin's ambivalence and pluralism. In particular, the blurring of punishment and treatment philosophies could arguably be viewed as the culmination of grand narratives gone awry, a condition precipitating a blending of sanctioning techniques and sanctioning agent roles and activities. The often simultaneously imposed conditions of mandated treatment, electronic monitoring, fines, and/or restitution, do well in illustrating this point, as does Gordon (1990: 5) when she states that `eclectic is probably the best description of the theoretical underpinnings of the penal system of the late 1980s'.

A sense of the postmodern is perhaps most acute in corporate penality. In particular, total quality management' strategies dismantle the traditional lines of authority, thereby empowering historically powerless groups, namely line staff and offenders. Penal organizations are designed according to a new administrative model where power flows from the bottom up rather than the top down. Consequently, line staff, rather than management, are to formulate policy because they are the closest to the problem. Under this model, the boundaries between offenders and penal staff have also been redrawn. Offenders evaluate their keepers (through lawsuits, and increased access to supervisors and formal grievance procedures) because they are now considered customers or consumers. The new generation jail' concept perhaps best exemplifies this `changing of the [old] guard'. Stationed alongside inmates in dormitory style cell blocks, correctional officers are engaged in direct, rather than remote, supervision. By maintaining a constant and visible presence, officers can be effective problem solvers and promote positive forms of inmate solidarity (Fuqua 1991; Gettinger 1984; Stohr et al. 1994; Zupan 1991).

The modern trend of centralizing state authority (Seidman 1994: 295) also disappears with corporate penality. Cohen (1984: 31) refers to this trend as `away from the state'. Through private contracts and community-corrections partnership acts, the state has relinquished some of its authority to encourage locally operated programmes for certain prison-bound offenders (Parent 1995; Schrantz 1992; Shilton 1993). Under these arrangements, private business and county governments have become the new beneficiaries of the power to punish, rendering punishment a mere commodity on the public and private market.

Not only have penal systems come to resemble corporations, but offenders have come to resemble consumers. Specifically, offender subsidization is seemingly congruous with conceptions of offenders as customers, albeit unwilling customers. This trend lends support to Feeley and Simon's (1992) `new penology' claim that resource efficiency has replaced offender normalization as a dominant penal goal. For example, shifting costs to offenders implies offenders are `rational individuals, responsive to penalities and prices' (Garland 1995: 194), rather than sick individuals in need of treatment and rehabilitation. One is perhaps less inclined to hold offenders fiscally responsible for behaviour that is socially, biologically, and/or psychologically determined and thus not of their own free will.

Modern penality argument

Several dimensions of the punish/treat trend speak to the persistence of the modern, and in effect, rehabilitation. Penal system objectives and sanctioning agent discourse remain grounded in rehabilitative terminology (clients, therapeutic, dual addictions, reintegration, low self-esteem, care, dysfunctional). The most notable modern dimensions of contemporary penal practice are the practices of mandated treatment and classification. Correctional and treatment services are administered by individuals who possess a range of specialized certifications, licentiates and academic credentials (MS degrees, LMHC (Licensed Mental Health Counselor); PA (Professional Association); LCSW (Licensed Clinical Social Worker), CAC (Certified Addictions Counselor)), that are each grounded in the clinical and/or social sciences (APPA and Orange County Documents). Consequently, offender normalization remains a vital part of penality. In fact, as penal systems absorb the `directionless', `unmotivated' and the `different breed from before', sanctioning agents reaffirm the [middle-class] values born of a modern society, as evidenced by penal curriculums developed around discipline and morality, parenting and life skills, reduced hedonism, impulse control, and time and money management. Classification merely assists in the treatment and normalization process by generating knowledge of the offender.

Yet it has been argued that contemporary penality is anti-rehabilitation (Feeley and Simon 1992; Simon and Feeley 1996). Though rehabilitation appears to exist in the form of community-based treatment programmes, it is proposed that it really does not exist because these `traditional forms' now have `new functions' (custodial continuum) (Feeley and Simon 1992: 460). While there is some accuracy to this argument (utilizing the more cost-effective treatment centres as graduated sanctions for programme violations), this interpretation does not take into account the renewal of treatment programmes within institutions (e.g., MRT, Continuity of Care, boot camps). Moreover, this argument rests, in large part, on a`caricatured'version of rehabilitation's past form and function (Garland 1995: 197). For example, Rothman (1980: 83-116) argues that at the pinnacle of rehabilitation's reign, probation and parole failed miserably. Probation/parole personnel were volunteers from the business community or political appointees, rather than the intended professionals with advanced education in the social sciences. Rothman also notes that treatment ideas immediately gave way to control and time spent with offenders amounted to no more than a few minutes per month at best. Even within the institution, rehabilitation was merely an ideal. In Benevolent Repression, Pisciotta demonstrates that the El Mira Reformatory, infamous for its promotion of rehabilitative objectives, maintained harsh and brutal methods of supervising offenders. The following excerpts from probation officer resource manuals and biographies suggest penality has long been concerned with custody, and therefore long been a balancing act in practice.

The service that the probation or parole officer can give to the community is not merely that of exercising surveillance over the lawbreakers ... but a concern with the client life ... (Keve 1954: 83)

Conscientious corrections workers have always asked themselves anxiously whether their duty lies more with treatment or surveillance. (Keve 1967: 9)

Restraint and restriction have coercive value, but force needs to be accompanied by counselling. (Newman 1958:205)

It has also been suggested that classification has been aligned with the (postmodern) task of regulating and maintaining offenders as groups (Feeley and Simon 1992: 459). However, classification schemes do more to individualize than de-individualize offenders. It is recognized that objective classification systems help promote rational, consistent and equitable assessments of each individual's needs and risks (Solomon and Baird 1982), allowing `officers to spend more time and energy with those offenders who need extra assistance in completing probation successfully' (Orange County Corrections 1995). Nor is classifying offenders with respect to a particular group a novel practice (see also Garland 1995: 201). Offender classifications have evolved from female/male to juvenile/adult, to minimum/medium/maximum risk, to the highly specialized categories of career criminal, HIV infected, mentally ill, high needs, drug or sex offender. It is reasonable then to conclude that current classifications are logical refinements of the longstanding attempt to perfect the fit between sanction, offender and offence. Thus, overall, `traditional forms' have moved closer to their original intentions (rehabilitation exists in practice even if not in theory) and the proposed `new functions' are in fact quite `traditional', or modern.

The essential features of modernity are also illustrated in corporate penality. In the words of Nils Christie, `privatization is nothing new' (1993: 117). The alliance between penal systems and private enterprise dates back (and even precedes) the origins of the prison. The corporation's predecessor, the factory, too served as a model for penal system operations (Melossi and Pavarini 1981), and the leasing of convict labour also involved private sector contracts for the purpose of reducing correctional costs (Bentham and Wines 1787; Sigler and Stough 1991). Feeley (1991) has concluded that when faced with fiscal crisis, the state historically has engaged the private sector, and subsequently absorbed many of its inventions. Two such inventions are productivity and resource management:

The law and order system is quietly, but highly efficiently, adapting to modernity, adapting to become a child of industrialization. Central values here are the clarification of goals, production control, cost reduction, and rationality ... We are back both to Max Weber and to a system of extreme efficiency in reaching those clearly defined goals. (Christie 1993: 148)

A focus on internal system productivity and resource management indicates reflective and `rational goal-oriented' behaviour (see Loewith on Weber 1970: 113). One state supervisor stated, `the goals have always been out there, we are just now formally identifying them and coming up with ways to determine if we are actually doing what we are supposed to do'. Thus, managerial objectives have not replaced modern penal objectives, as Feeley and Simon contend, they have merely clarified the intent to measure scientifically so as to increase the efficiency and rationality of the system. The `new' system performance objectives have been superimposed on the `old' objectives to facilitate their realization--a humane penal system is not possible when offenders are unduly detained because of inefficient caseload processing, nor can time be devoted to offenders when time is unnecessarily devoted to excess paper-work and duplicative effort.

Offender subsidization can also be linked to the modern, and even pre-modern era; in medieval Europe, penal expenses and narrow profit margins forced inmates to bear much of the costs of their confinement, including food and other essential amenities (Peters 1995: 35). In the US, correctional fee statutes emerged shortly after confinement as the dominant form of punishment. In 1846, Michigan instituted the first correctional fee statute and for the next 125 years, fee legislation applied only to incarcerated offenders (Parent 1990: 1). The federal system and 39 states have enacted legislation pertaining to prison incarceration fees and 17 states legislation for jail incarceration fees (ibid.). Though these fees were rarely enforced, the majority of these states implemented this legislation before 1970 (ibid.). That these fees are just now being enforced is not so much a sign of breaking with the modern as it is a sign of implementing the modern.

Summary and Conclusion

This article has examined contemporary penality from the perspective of penal actors. Three major trends have been identified and their meaning analysed by exploring both modern and postmodern interpretations. Based on the findings and analysis, it can be concluded that contemporary penality is largely entrenched in the `old'. Penal objectives, practices, and philosophies (treatment, classification, knowledge, middle-class ideology) continue to reflect the modem themes of normalization, classification, treatment, rationality, efficiency and progress. That which appears `new' (offender subsidization, corporate penality) actually reflects an extension rather than a replacement of the `old'.

Clearly, postmodern conceptions are capable of generating unique interpretations of contemporary penal trends. How compelling these interpretations are is less clear, particularly when these trends are examined in a more specific, empirical and historical context. By dismissing the past and remaining tentative in its conceptual parameters, postmodernism inevitably overstates the new and claims territory that is of modern descent.

While postmodern is a provocative theoretical construct, when it is applied to penology, it appears to be lacking sufficient empirical foundation. As Lemert (1993: 460) warns, `large visions of the social control of criminal offenders can be misleading' if they ignore the complexity and detail of real-world penal processes.

(1) Modernism is about order, discipline, classification, normalization, rationality, efficiency and the accumulation of scientific knowledge--of human behaviour, populations, and institutions--for the organization, control and maintenance of modem society's various structures (e.g., welfare, prisons, schools, factories, hospitals) (Denzin 1991; Foucault 1977; Garland 1995; Einstadter and Henry 1995; Seidman 1994).

(2) Foucault locates penal modernism with the birth of the prison, and Garland the Progressive Movement. The early 1970s is generally considered the beginning of the end of penal modernism.

(3) As of 1995, the Federal government and 34 states have implemented performance-based budgets (Florida Department or Corrections 1995b).

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Karol Lucken, Department of Criminal justice, University of Central Florida, Orlando, Florida, USA. The author would like to express thanks to Thomas Blomberg for his comments and suggestions.