We need allegory and analogy to help us understand things that puzzle us, but choosing an inept metaphor can lock us in to a misleading line of thinking. In penological study, an example of a hackneyed, beguiling but unfitting metaphor is a pendulum. Penal policy and practice have sometimes been imagined to move like a pendulum between punishment and rehabilitation. The shortcomings and distortions of this metaphor have been brilliantly exposed by Philip Goodman, Joshua Page and Michelle Phelps in their book Breaking the Pendulum (2017) . Penal practices do not oscillate between set points, much less do they go to and fro along the same trajectory. The very idea of penal practice as a determinable state is doubtful as a range of interacting and sometimes contradictory influences are always in play. Ashley Rubin and Michelle Phelps highlight ‘the fragmentation, variation, and contestation within penal power, policy, and decision making’, the acting out of which leads to practices with a range of different and sometimes contradictory meanings that resist any straightforward characterisation.
Notoriously, the many people involved in penal practices – policy makers, legislators, judges and the many individuals in diverse professions who give effect to sentences – may pursue (and / or claim to pursue) various, incompatible and conflicting purposes – some of which cannot be assumed to be achievable in any case. No sooner has an idea been envisaged than it becomes subject to negotiation, adaptation, compromise, distortion and sometimes subversion in its passage into policy and law. Further modifications are likely to follow in the process of implementation. This is perhaps part of the reason why the outcomes of penal policy are so often unexpected and even perverse. Policy makers and managers may suspect deliberate resistance. But at least as often practice is the upshot of people trying to adapt instruction to the challenges of their work, when the carefully wrought criteria of policy encounter the complexity and vicissitudes of real life. For example, the reluctance of probation staff in England and Wales to accept the punitive characterisation of their work that has sometimes been urged by government is not just an ideological aversion nor only at odds with the motivations that inspire many to join the profession in the first place, but represents the considered judgement of experienced staff that punitive attitudes, scolding and threats of return to court or recall to prison make it impossible to do the job well or even at all.
There is at least one further (historically neglected) dimension to the problem of trying to characterise punishment at any time and place. Policymakers may have their intentions, sentencers theirs and practitioners others again, but none of this determines the experience of those subject to punishment. When the dominant theme of policy and practice is claimed to be rehabilitation or care, for example, do those subject to punishment, in prison or the community, experience this as any less burdensome or painful than when punitive intentions are professed? Although attempts are being made to appreciate these experiences, and ‘user voices’ are becoming easier to hear, the relative neglect of this rich source of understanding has been a serious limitation of much penological study.
An analogy (better than the pendulum) was proposed in a not-so-very-different context by Ian Hacking (1999) . Several interactions, bound up with a number of considerations of conscience and convenience, could be understood as constituting an ecological niche. A diverse, often conflicting and mutually influential set of social, economic, political and cultural factors collectively constitute a milieu in which institutions and practices emerge, operate and develop. The indefinitely many ways in which these factors interact accounts for local variation and idiosyncrasy, as well as making the development of penal policy and practice inherently hard to predict. The attempt to identify a set of conditions (some of which may be necessary, although few are likely to be sufficient) seems much more fruitful than a reductive assumption that supposes that any single influence might determine the form and trajectory of penal development.
Investigation is usually undertaken through comparative analysis, comparing different times and places. A neglected mode of enquiry, however, is penal policy transfer – trying to find out what takes place when one country tries to learn lessons or borrows practices from others (see, for example, Taking Probation Abroad ). Finding out whether penal innovations flourish or wither and the ways in which they may depart from original aspirations can be deeply instructive about the dynamics of penal development – a kind of applied comparative penal policy.
In my latest (2022) book, Punishment, I draw on another analogy. In Pat Barker’s novel The Ghost Road (the final book in her brilliant Regeneration trilogy), a group of soldiers in the trenches are pondering their situation during the First World War. One insists that the war cannot be explained by the official government rationale, but is ‘feathering the nests of profiteers’. The novel’s main character, Billy Prior, is asked for his opinion.
‘What do I think? I think what you’re saying is basically a conspiracy theory, and like all conspiracy theories it’s optimistic. What you’re saying is, OK the war isn’t being fought for the reasons we’re told, but it is being fought for a reason. It’s not benefiting the people it’s supposed to be benefiting, but it is benefiting somebody. And I don’t believe that, you see. I think things are actually much worse than you think because there isn’t any kind of rational justification left. It’s become a self-perpetuating system. Nobody benefits. Nobody’s in control. Nobody knows how to stop.’
Billy’s comrades may have challenged his claim that ‘nobody benefits’. And similarly in the realm of penal affairs there are plain beneficiaries. In some circumstances, commercial businesses, lawyers and penal agents, as well as those of us who study their work, draw a number of advantages from penal institutions and practices. At the same time, penality rarely brings the benefits claimed for it or affords satisfaction to victims, people with convictions or the general public. And while attempts may be made with varying degrees of success to influence its direction, it seems likely to be true that Nobody’s in control. Nobody knows how to stop.
This may be true of many human affairs. Actions are performed, sometimes with complex and ambivalent motives; consequences follow, some of which cannot be assumed to have been intended, further actions taken. Policies and strategies stray as they are put into practice, events taking a course of their own. The upshot can be arrangements that are not working in any way that had been anticipated and may be demonstrably unsuccessful, but in which people are enmeshed and which they feel (and perhaps are) powerless to alter. Again, attempts to bring about change are inevitably contested, so that either things continue on the same trajectory or the changes that do take place may be markedly different from anybody’s ambition. People will then take such benefits as they can.
To take a Ghost Road perspective is not to walk away from explanatory accounts: the many factors that go to shape policy and practice can be investigated in their own terms and in relation to their interactions: each factor has its antecedents. But the meld, mixture and therefore the consequences defy any idea of single, unified strategy that can be straightforwardly achieved, even by the most powerful. If this is right, the implications are considerable. Both in theory and in practice, the idea of a penal strategy becomes questionable and any reformist project should be espoused with scepticism and even a degree of pessimism. There are certainly changes that need to be made, but whether anybody knows how they can be accomplished is a further question.