Abstract
Recent trends in crime control have given new energy to an age-old question, namely what kinds of activity qualify as punishment. In addressing this question, jurists and scholars have often employed a logic that either restricts interpretations of punishment to traditional forms (e.g., prison, probation, death penalty) and functions (e.g., deterrence and retribution), or expands them to include the broader forms and functions of social control. This paper examines these opposing logics and considers an alternative logic based in common stipulations in power theory. Within this particular framework, punishment is conceived as action that is necessarily relational, intentional, personal and coercive.
Similar content being viewed by others
Notes
SOCC laws have been enacted in 17 states. They allow for the incarceration of certain sex offenders in the prison and mental health systems, when commitment to prison alone has been the presumptive sentence for offenders deemed competent to stand trial. For offenders deemed “sexually violent predators,” SOCC mandates indeterminate custody in a [treatment] facility once the prison sentence has been served. Registration/Notification (RN) laws have been implemented in every state in the U.S. and have gained popularity internationally as well (see Levi 2008). Though variations in program structure exist, RN laws generally require that persons convicted of sex offenses register and update their whereabouts with local police departments and that citizens be notified, or have a means of knowing, when a sex offender resides in their community.
Feinberg cites the case of Flemming v Nestor (1960), in which the U.S. Supreme Court similarly ruled that a regulatory action, namely retroactive deportation and denial of social security benefits for prior involvement in the Communist Party, was not punitive.
These types of deliberations over form and function semantics and attributes can be seen across a variety of punishment definitions. For example, Sutherland and Cressey (1974:298) define punishment as that “which is inflicted by the group in its corporate capacity upon one who is regarded as a member of the same group…. that involves pain or suffering produced by design and justified by some value that the suffering is presumed to have.” E. O.Wright (1973:22) defines punishment as the physical force of the state to control the lives of people the state defined. Morris (1995:156) defines punishment simply as deprivations imposed in the event of wrongful conduct by someone in a position of authority. Van den Haag's (1975:8) defines it as a deprivation or suffering imposed by law, whereby some sort of retribution for a past law-like norm violation is implied.
Variations of these questions were originally posed by Rothman (1981) and Mayer (1983) as analytical tools in the study of social control reform. To appropriately distinguish cases of social control, Rothman and Mayer suggest that researchers be guided by one or some combination of the following questions: "by whom," "for what purpose," "why this form," and/or the "level of control.”
In the government-at-a-distance literature (i.e., Rose and Miller 1992; Crawford 1997; Giddens 1990; Rhodes 1995) it is argued that “modern power and government are formulated to work in ways other than through direct intervention” (Frauley 2007). This form of indirect rule can be expressed as “constitutional distance,” whereby the responsibility for social order and welfare is diffused outward to non-state institutions, agencies, and citizens (Rose 1994).
While Bronsteen et al., view this claim as plausible, they ultimately disagree with [retributivist] claims that the mere imposition of anything by the state communicates condemnation and thus punishment. They assert that the “something” must involve a negative experience.
One could take this assumption a step further and argue, as Bronsteen et al. (2010) have, that if certain results are foreseeable (e.g., stigma, humiliation), then they are also intentional.
This is not to say that the blanket question of opportunity to choose covers all of the contingencies associated with distinguishing punitive cases. Indeed, there are subtleties that complicate free will, such as the range of available alternatives (Lamb 1994) and the benefits conferred by these alternatives. There are also differences in opinion regarding what involuntary means. Etzioni (1968) argues that involuntary means to deprive actors of the opportunity to choose, whereas Kuhn (1963) contends involuntariness need not go to the extreme of no choice, but to the point where power is so one-sided that the outcome is highly predictable.
References
Alexander, R. (1995). Employing the mental health system to control sex offenders after penal incarceration. Law and Policy, 17, 11.
Austin, J., & Krisberg, B. (1981). Wider, stronger, and new nets: The dialectics of criminal justice reform. Journal of Research in Crime and Delinquency, 18(1), 165–196.
Bacharach, S. B., & Lawler, E. J. (1980). Power and politics in organizations: The Social psychology of conflict, coalitions, and bargaining. San Francisco: Jossey-Bass.
Becker, J. V., & MURPHY, W. D. (1998). What we know and do not know about assessing and treating sex offenders. Psychology, Public Policy, and Law, 4, 116–137.
Benn, S. I., & Peters, R. S. (1959). Social principles and the democratic state. London: Allen & Unwin.
Bierstedt, R. (1950). An analysis of social power. American Sociological Review, 15, 730.
Black, D. (1984). Toward a general theory of social control (Vol. 2). New York: Academic Press.
Bronsteen, J., Buccafusco, C., & MASUR, J. S. (2010). Retribution and the experience of punishment. California Law Review, 98(5), 1463–1496.
Chunn, D. E., & Gavigan, S. (1988). Social control: Analytical tool or analytical quagmire? Contemporary Crises, 12, 107–124.
Clark, A., & Gibbs, J. P. (1965). Social controls: A reformation. Social Problems, 12, 398–415.
Cohen, S. (1979). The punitive city: Notes on the dispersal of social control. Contemporary Crises, 3, 339–363.
Crawford, A. (1997). The local governance of crime. Oxford: Clarendon Press.
Emerson, R. M. (1962). Power-dependence relations. American Sociological Review, 27, 31–40.
Etzioni, A. (1968). The active society: A theory of societal and political processes. New York: The Free press.
Feinberg, J. (1970). Doing and deserving. Princeton, NJ: Princeton University Press.
Frauley, M. (2007). Toward an archaeological-realist Foucauldian analytics of government. British Journal of Criminology, 47(4), 617–633.
Galaskiewicz, J. (1979). Exchange networks and community politics. Beverly Hills, CA: Sage.
Giddens, A. (1990). The consequences of modernity. Cambridge: Polity Press.
Gibbs, J. P. (1966). Sanctions. Social Problems, 14, 147–159.
Gordon, D. R. (1995). Justice juggernaut: Fighting street crime. Controlling Citizens: Rutgers University Press.
Howe, A. (1994). Punish and critique. New York: Routledge.
Hudson, B. (1996). Understanding justice. Buckingham, England: Open University Press.
Janowitz, M. (1975). Sociological theory and social control. American Journal of Sociology, 81(1), 82–109.
Jones, R. (2000). Digital rule: Punishment. Control and Technology’, Punishment and Society, 2, 5–22.
Kolber, A. J. (2009). The subjective experience of punishment. Columbia Law Review, 109, 182.
Kuhn, A. (1963). The study of society: A unified approach. Homewood, IL: R. D. Irwin.
La Fond, J. Q. (1992) Washington’s sexually violent predator law: A deliberate misuse of the therapeutic state for social control. Seattle U.L. Rev, 15(3), 655–703.
Lamb, S. (1994). The trouble with blame. Oxford: Oxford University Press.
Lemert, E. M. (1951). Social pathology. New York: McGraw-Hill.
Lemert, E. M. (1981). Diversion in Juvenile justice: What hath been wrought? Journal of Research in Crime and Delinquency, 78(1), 34–46.
Levi, R. (2008). Auditable community: The moral order of Megan’s Law. British Journal of Criminology, 48(5), 583–603.
Lianos, M., & Douglas, M. (2000). Dangerization and the end of deviance. British Journal of Criminology, 40, 261–278.
Lowman, J., Menzies, R. J., & Palys, T. S. (1987). Transcarceration: Essays in the sociology of social control. Aldershot England: Gower.
Lucken, K., & Ponte, L. (2008). A just measure of forgiveness: Reforming occupational licensing regulatons for ex-offenders using BFOQ analysis. Law and Policy, 30, 46–72.
Lynch, M. (2001). From the punitive city to the gated community: Security and segregation across the social and penal landscape. University of Miami Law Review, 56(1), 89.
Marsden, P. S., & Laumann, E. (1977). Collective action in a community elite: Exchange, influence resources, and issue resolution. In R. Liebert & A. Imershein (Eds.), Power, paradigms, and community research, 199–250. London: ISA/Sage.
Marx, G. (1988). Undercover: Police surveillance in America. Berkeley: University of California Press.
Marx, G. (1981). Ironies of social control. Social Problems, 28(3), 221–266.
Mauer, M. (2002). Mass imprisonment and the disappearing voters. In M. Mauer & M. Chesney-Lind (Eds.), The collateral consequences of mass imprisonment (pp. 50–58). New York: New Press.
Mayer, J. A. (1983). Notes towards a working definition of social control in historical analysis. In S. Cohen & A. Scull (Eds.), Social control and the state (pp. 17–33). New York: St. Martin’s Press.
McDonald, G. W. (1980). Family power: The assessment of a decade of theory and research. Journal of Marriage and the Family, 42, 841–854.
Molm, L. D. (1997). Coercive power in social exchange. Cambridge, NY: Cambridge University Press.
Montague, P. (1995). Punishment as societal-defense. Lanham, MD: Rowman & Littlefield.
Morgan, P. M. (1977). Deterrence: A conceptual analysis. Beverly Hills, CA: Sage.
Morris, H. (1995). A Paternalistic theory of punishment. In J. G. Murphy (Ed.), Punishment and rehabilitation (3rd ed., pp.154–168). Wadsworth.
Morris, N., & Tonry, M. (1990). Between prison and probation: Intermediate punishment in a rational sentencing system. Oxford: Oxford University Press.
Murphy, J. G., & Hampton, J. (1998). Forgiveness and mercy. Cambridge, NY: Cambridge University Press.
Newman, G. (1978). The punishment response. Philadelphia: J.B Lippincot Company.
O’MALLEY, P. (1999). Volatile and contradictory punishment. Theoretical Criminology, 3(2), 175–196.
Platt, A. (1969). The child savers. Chicago: University of Chicago Press.
Rhodes, R. A. W. (1995). The new governance: Governing without government, ESRC state of Britain seminar II. Swindon: ESRC.
Rollman, E. M. (1998). Mental illness: A sexually violent predator is punished twice for one crime. Journal of Criminal Law and Criminology, 88, 985–1014.
Rose, N. (1994). Expertise and the government of conduct. Studies in Law, Politics and Society, 14, 359–397.
Rose, N., & Miller, P. (1992). Political power beyond the state: Problematics of government. British Journal of Sociology, 43(2), 173–205.
Rothman, D. J. (1981). Social control: The uses and abuses of the concept in the history of incarceration. Rice University Studies, 67, 9–20.
Schelling, T. C. (1960). The strategy of conflict. New York: Oxford University Press.
SCHOPP, R. F., & STURGIS, B. J. (1995). Sexual predators and legal mental illness for civil commitment. Behavioral Science & Law, 13, 437–440.
Schlossman, S. (1977). Love and the American Delinquent:The theory and practice of ‘progressive’ juvenile justice, 1825–1920. Chicago: University of Chicago Press.
Scull, A. (1977). Decarceration: Community treatment and the deviant—a radical view. Englewood Cliffs, NJ: Prentice Hall.
Shearing, C. D., & Stenning, P. C. (1987). Say cheese! The disney order that is not so mickey mouse. In C. Shearing & P. Stenning (Eds.), Private policing (pp. 317–324). Newbury Park, CA: Sage.
Shepsle, K. (1992). Congress is a ‘they’, not an ‘it’: Legislative intent as oxymoron. International Review of Law & Economics, 12, 239.
Simon, J. (1998). Managing the monstrous: Sex offenders and the new penology. Psychology, Public Policy, and the Law, 4, 452–467.
Staples, W. G. (2003). Everyday surveillance: Vigilance and visibility in postmodern life. Oxford, England: Rowan & Littlefield Publishers.
Sutherland, E. H., & Cressey D. R. (1974). Criminology (9th ed.). Philadelphia: Lippincott.
Szasz, T. (1963). Law, liberty, and psychiatry. New York: MacMillan.
Takagi, P. (1974). The correctional system. Crime and Social Justice, 2, 82–89.
The Pew Center on States. (2009). 1 in 31: The long reach of American corrections. Washington D.C: Pew Charitable Trusts.
Travis, J. (2002). Invisible punishment: An instrument of social exclusion. In M. Mauer & M. Chesney-Lind (Eds.), Invisible punishment: The collateral consequences of mass imprisonment (pp. 15–36). Washington, DC: New Press.
Uggen, C. (2008). Editorial introduction: The effect of criminal background checks on hiring ex-offenders. Criminology and Public Policy, 7(3), 367–370.
van Swaaningen, R. (1999). Reclaiming critical criminology: Social justice and the european tradition. Theoretical Criminology, 3, 5–28.
Walker, N. (1991). Why punish?. Oxford: Oxford University Press.
Weber, M. (1947). The theory of social and economic organization. New York: Oxford University Press.
Winick, B. J. (1998). Sex offender law in the 1990s: A therapeutic jurisprudence analysis. Psychology, Public Policy, and Law, 4(1/2), 505–570.
Wright, E. O. (1973). The politics of punishment. New York: Harper Row Publishers.
Legal Cases Cited
Smith and Botelho v John Doe I et al. 2003.
Kansas v Hendricks 1997.
Flemming v Nestor 1960.
Acknowledgments
I would like to thank anonymous reviewers Bob Langworthy and Bob Bohm for their helpful comments and encouragement in the preparation of this manuscript.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Lucken, K. You Say Regulation, I Say Punishment: The Semantics and Attributes of Punitive Activity. Crit Crim 21, 193–210 (2013). https://doi.org/10.1007/s10612-012-9166-z
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10612-012-9166-z