open university press understanding justice an introduction to ideas perspectives and controversies in modern penal theory jun 2003

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open university press understanding justice an introduction to ideas perspectives and controversies in modern penal theory jun 2003

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UNDERSTANDING JUSTICE An Introduction to Ideas, Perspectives and Controversies In Modern Penal Theory Second Edition • Why should offenders be punished? • What should punishments be designed to achieve? • Why has imprisonment become the normal punishment for crime in modern industrial societies? • What is the relationship between theories of punishment and the actual penalties inflicted on offenders? This revised and updated edition of a highly successful text provides a comprehensive account of the ideas and controversies that have arisen within law, philosophy, sociology and criminology about the punishment of criminals. Written in a clear, accessible style, it summarises major philosophical ideas – retribution, rehabilitation and incapacitation – and discusses their strengths and weaknesses. This new edition has been updated throughout including a new section on recent cultural studies of punishment and the phenomenon of mass imprisonment that has emerged in the United States. There is also a new chapter on restorative justice, which has developed considerably in theory and in practice since the publication of the first edition. The sociological perspectives of Durkheim, Marxists, Foucault and their contemporary followers are analysed and assessed. A section on the criminological perspective of punishment looks at the influence of theory on penal policy, and the impact of penal ideologies on those upon whom punishment is inflicted. The contributions of feminist theorists, and the challenges they pose to masculine accounts of punishment, are also included. The concluding chapter presents critiques of the very idea of punishment, and looks at contemporary proposals which could make society’s response to crime less dependent on punishment than at present. Understanding Justice has been designed for students from a range of disciplines and is suitable for a variety of crime-related courses in sociology, social policy, law and social work. It will also be useful to professionals in criminal justice agencies and to all those interested in understanding the issues behind public and political debates on punishment. Barbara A. Hudson is Professor at the Lancashire Law School, University of Central Lancashire. She teaches penology on courses in law and criminology, and has researched and written extensively on criminal justice topics. Her previously published works include Justice Through Punishment: A Critique of the ‘Justice’ Model of Corrections (1987), Penal Policy and Social Justice (1993), and Racism and Criminology (1993, edited with Dee Cook). Cover illustration: Linda Combi Cover design: Phil Barker 9 780335 210367 ISBN 0-335-21036-8 www.openup.co.uk Barbara A. Hudson Understanding justice SECOND EDITION Hudson Series editor: Mike Maguire Understanding justice An introduction to ideas, perspectives and controversies in modern penal theory SECOND EDITION Understanding justice 2nd ed 27/2/03 3:30 PM Page 1 Understanding justice An introduction to ideas, perspectives and controversies in modern penal theory Second edition 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page i CRIME AND JUSTICE Series editor: Mike Maguire Cardiff University Crime and Justice is a series of short introductory texts on central topics in criminology. The books in this series are written for students by inter- nationally renowned authors. Each book tackles a key area within crimi- nology, providing a concise and up-to-date overview of the principal concepts, theories, methods and findings relating to the area. Taken as a whole, the Crime and Justice series will cover all the core components of an undergraduate criminology course. Published titles Understanding youth and crime Sheila Brown Understanding crime data Clive Coleman and Jenny Moynihan Understanding white collar crime Hazel Croall Understanding justice (second edition) Barbara A. Hudson Understanding crime prevention Gordon Hughes Understanding violent crime Stephen Jones Understanding community penalties Peter Raynor and Maurice Vanstone Understanding criminology (second edition) Sandra Walklate 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page ii Understanding justice An introduction to ideas, perspectives and controversies in modern penal theory Second edition Barbara A. Hudson Open University Press Buckingham · Philadelphia 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page iii Open University Press Celtic Court 22 Ballmoor Buckingham MK18 1XW email: enquiries@openup.co.uk world wide web:www.openup.co.uk and 325 Chestnut Street Philadelphia, PA 19106, USA First Published 1996 Reprinted 1997, 1998, 1999, 2000 First published in this second edition, 2003 Copyright © Barbara A. Hudson, 2003 All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher or a licence from the Copyright Licensing Agency Limited. Details of such licences (for reprographic reproduction) may be obtained from the Copyright Licensing Agency Ltd of 90 Tottenham Court Road, London, W1P 0LP. A catalogue record of this book is available from the British Library ISBN 0 335 21037 6 (hb) 0 335 21036 8 (pb) Library of Congress Cataloging-in-Publication Data Hudson, Barbara, 1945 - Understanding justice : an introduction to ideas, perspectives, and controversies in modern penal theory / Barbara A. Hudson. – 2nd ed. p. cm. (Crime and justice) Includes bibliographical references and index. ISBN 0-335-21037-6 – ISBN 0-335-21036-8 (pbk.) 1. Punishment. 2. Criminal law – Philosophy. I. Title. II. Crime and justice (Buckingham, England) K5103.H83 2003 364. 6´01–dc21 2002030371 Typeset by Type Study, Scarborough Printed in Great Britain by Biddles Ltd, Guildford and King’s Lynn 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page iv Series editor’s foreword viii Acknowledgements x 1 Perspectives on punishment 1 Defining modern penology 1 The goals of punishment 3 Punishment and society: the social role and characteristics of penal systems 6 Punishing effectively: the criminological tradition 10 Transgressing crime and punishment: abolition and deconstruction 12 Summary 13 Part one: The goals of punishment: the juridical perspective 2 Utilitarian approaches 17 Introduction 17 Deterrence 18 Evaluating the deterrent effects of punishment 21 Individual deterrence 24 Reform/rehabilitation 26 Criticisms of rehabilitative penalties 28 Prevention through incapacitation 31 Problems with prevention 33 Conclusion 36 3 Retribution 38 Introduction 38 Modern retributivism: the just-deserts movement 39 Proportionality and seriousness 43 chapter one Contents 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page v Retribution and the justification of punishment 46 Deterrence and retribution in distribution 52 Summary and conclusion 54 4 Hybrids, compromises and syntheses 56 Introduction 56 Desert and deterrence: crime reduction within limits 57 Desert and rehabilitation: reform with rights 62 Targets and restraints: syntheses of utilitarian and retributive theories 66 Conclusion 73 5 Restorative justice: diversion, compromise or replacement discourse 75 Introduction 75 Definition, principles and models 77 The range and limits of restorative justice 83 Retribution, rights and restorative justice 88 Conclusion 92 Part two: Punishment and modernity: the sociological perspective 6 Punishment and progress: the Durkheimian tradition 95 Introduction 95 Durkheim: punishment and solidarity 97 Durkheim’s sociology of law: critical evaluation 102 Weber: bureaucracy and rationality 104 Durkheimian and Weberian themes: some contemporary applications 108 Punishment and culture: contemporary formulations 109 Conclusion 111 7 The political economy of punishment: Marxist approaches 112 Introduction 112 Key concepts in Marxist sociology 113 Punishment and the labour market 115 Why prison? 118 Ideology and the control of surplus populations 121 The challenge of feminism 128 Conclusion: the legacy of Marxism 130 8 The disciplined society: Foucault and the analysis of penality 132 Introduction 132 Foucault’s disciplinary penality 133 Delinquency and normalization 137 Critique and controversy 142 vi Understanding criminology 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page vi Periodicity 143 Overgeneralization 144 Partiality 146 Functionalism 148 Politics 149 Summary and conclusion: Foucault’s legacy 150 9 Understanding contemporary penality 153 Introduction: punishment and contemporary culture 153 Governmentality, risk and actuarialism 157 Penal policy as problem-solving 164 The mass imprisonment society 168 Summary and conclusions: punishment in the twenty-first century 171 Part three: Towards justice? 10 The struggle for justice: critical criminology and critical legal studies 175 Introduction 175 Challenges to mainstream penology 177 Abolitionism 178 Feminist jurisprudence 180 Concluding comments 184 Postscript: Beyond modernity: the fate of justice 187 Introduction 187 Human rights and the politics of public safety 188 Justice and postmodernity 190 Glossary of key terms 193 Suggestions for further reading 195 References 197 Index 212 Contents vii 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page vii Understanding Justice, the first edition of which appeared in 1996, was the first book in Open University Press’ successful Crime and Justice series. Indeed, the quality of this book was one of the main reasons that the series became so quickly established as a key resource in universities teaching criminology or criminal justice, especially in the UK but increasingly also overseas. The author, Barbara Hudson, is internationally renowned in the field of penal theory, and her book set the pattern for a series of short but intellectually challenging introductory textbooks on important areas of debate in criminology, criminal justice and penology. The aim in every case has been to give undergraduates and graduates both a solid grounding in the relevant area and a taste to explore it further. Although aimed primarily at students new to the field, and written as far as possible in plain language, the books are not oversimplified. On the contrary, the authors set out to ‘stretch’ readers and to encourage them to approach criminological know- ledge and theory in a critical and questioning frame of mind. Professor Hudson has now substantially revised and updated the text, including two new chapters on key developments in penological thinking over the last few years: the rapid growth of interest in restorative justice; and the rich new vein of criminological and sociological writing on the major shifts in modes of punishment (or ‘penality’) which appear to be taking place in ‘late modern’ western democracies. The book, however, continues to give full weight to the views of earlier social theorists, as well as to juridical perspectives on punishment. It provides a substantial dis- cussion of fundamental philosophical questions about the principles and goals of, and justifications for, punishment. It also outlines and critically analyses the pioneering contributions of major sociological writers, from Marx, Weber and Durkheim to Foucault, in explaining why particular types or modes of punishment (such as capital punishment and imprison- ment) become prominent in different kinds of societies at different times in history. chapter one Series editor’s foreword 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page viii The final two chapters take us to the cutting edge of current sociological and penal debates, to which Hudson herself has been a major contributor. She introduces key concepts such as governmentality, risk and actuarial- ism, and surveys the (largely depressing) current penal landscape, charac- terized by the grouping of offenders into risk categories and by increasingly harsh and exclusionary penal measures, including massive increases in imprisonment. In seeking alternative directions, she emphasizes the critical importance of holding on to the concept of ‘justice’, outlining the particu- lar contributions of feminists, abolitionists and advocates of restorative justice. Overall, the strength of the book stems from the unusual ability of a highly knowledgeable author to compress a wide range of sophisticated theoretical writing and debate into a short and accessible text, without either grossly over-simplifying arguments or assuming too much initial knowledge on the part of the readers. Other books previously published in the Crime and Justice series – all of whose titles begin with the word ‘Understanding’ – have covered crimino- logical theory (Sandra Walklate – now also in a second edition), crime data and statistics (Clive Coleman and Jenny Moynihan), youth and crime (Sheila Brown), crime prevention (Gordon Hughes), violent crime (Stephen Jones), community penalties (Peter Raynor and Maurice Vanstone) and white collar crime (Hazell Croall). Others in the pipeline include texts on prisons, policing, social control, sentencing and criminal justice, race and crime, psychology and crime, risk and crime, and crime and social exclusion. All are major topics in university degree courses on crime and criminal justice, and each book should make an ideal foundation text for a relevant module. As an aid to understanding, clear summaries are provided at regular intervals, and a glossary of key terms and concepts is a feature of very book. In addition, to help students expand their knowledge, recommendations for futher reading are given at the end of each chapter. Mike Maguire Professor of Criminology and Criminal Justice, Cardiff University Foreword ix 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page ix [...]... as repressing those who do not accept capitalist discipline This analytic tradition comes from looking at changes in the nature of punishments in relation to changes in economic organization and other social characteristics, and noticing that there does seem to be significant correlation between developments in penality and in other social spheres A second important strand in this ‘sociology of repression’... drills and strict discipline Canadian and US probation orders often include a period of ‘shock incarceration’ at the beginning of the sentence, to show offenders what will happen next time In the 1980s ‘boot camps’ became popular in the USA, and have been introduced into England and Wales (Guardian, 2 June 1994) These are similar to the detention centres, based on the training regimes of US marines Boot... developments in penal policy and theory As ever, thanks to Harry and Adam, without whom I would never finish anything Acknowledgements for the second edition Participation in the colloquium on restorative justice, organized by the Centre for Penal Theory and Penal Ethics, Cambridge University, and in the seminar on risk, crime and justice held at John Jay College of Criminal Justice, New York, has helped... possible to be a reductionist without being a Utilitarian (Cavadino and Dignan 1992: 33), and we shall be pointing out which aspects of reductionism are and are not derived from Utilitarianism Most in uential 02Chap 2 (bc/d) 18 2/10/03 10:16 AM Page 18 Understanding justice forms of crime-reduction penal theory in modern times have, however, been linked with the theories of the eighteenth- and nineteenth-century... role and the characteristics of penal systems Punishing effectively: the criminological tradition Transgressing crime and punishment: abolition and deconstruction Summary Defining modern penology The aim of this book is to introduce the main ideas, disciplines and perspectives that are found in modern Western penology By ‘penology’ is meant the study of punishment for crime, and by modern is meant... around Variants of both approaches are found in the 01Chap 1 (bc/d) 4 2/10/03 10:15 AM Page 4 Understanding justice writings of the ancient Greeks, in the teachings and laws of the major religions, in the flowering of political and moral philosophy in the Renaissance and Enlightenment periods, and new formulations of both perspectives continue to be produced Contemporary debates will be reviewed in Chapter... there is (Bottomley and Pease 1986) It is even more difficult to know if crime is increasing or decreasing: apparent increases in crime may in fact be increases in reporting and/ or detection rates, rather than increases in actual criminal behaviour In recent years, changes in insurance regulations, so that claims are not met unless losses are reported to the police, are thought to have in uenced the... comments and criticisms have done much to shape the form and content of the book The final section owes much to discussions with Andrew von Hirsch, Kathleen Daly and Joe Sim, and to an all too brief time as visiting scholar to the Jurisprudence and Social Policy Program, University of California, Berkeley, which gave me the time and inspiration to sort out what I really think about current developments in penal. .. not encompass everything that is painful or demanding, and does not encompass all kinds of control or discipline of one person by another It means penalties authorized by the state, and in icted by state officials, in response to crime Punishment in this sense is usually distinguished from other kinds of pain and deprivation, and from the wider concept of ‘social control’, by listing its essential features... stressed the importance of human 02Chap 2 (bc/d) 20 2/10/03 10:16 AM Page 20 Understanding justice reason, in opposition to medieval ideas such as the divine right of kings, divine revelation and the one true interpretation of the Scriptures In common with other Enlightenment thinkers, Beccaria argued that institutions of government – including the penal system – ought to be such as to command the rational . Maguire Understanding justice An introduction to ideas, perspectives and controversies in modern penal theory SECOND EDITION Understanding justice 2nd ed 27/2/03 3:30 PM Page 1 Understanding justice An introduction. and Maurice Vanstone Understanding criminology (second edition) Sandra Walklate 00Prelim 60P (bc/d) 2/10/03 10:14 AM Page ii Understanding justice An introduction to ideas, perspectives and controversies. components of an undergraduate criminology course. Published titles Understanding youth and crime Sheila Brown Understanding crime data Clive Coleman and Jenny Moynihan Understanding white collar

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  • Cover

  • Half Title

  • Title

  • Copyright

  • Contents

  • Series editors foreword

  • Acknowledgements

  • Chapter 01

  • Part One

    • Chapter 02

    • Chapter 03

    • Chapter 04

    • Chapter 05

    • Part Two

      • Chapter 06

      • Chapter 07

      • Chapter 09

      • Part Three

        • Chapter 10

        • Postscript

        • Glossary of key terms

        • Suggestions for further reading

        • References

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