If you are silent about your pain, they’ll kill you and say you enjoyed it.
Zora Neale HurstonFootnote 1Nils Christie once characterized penal change as a pendulum’s move between classicism and positivism, and then between neoclassicism and neopositivism, before he mused wistfully about a “peaceful position or middle stage where the pendulum stops moving, where harmony is established” (Christie Reference Christie1981, 70). But in Breaking the Pendulum, Goodman, Page, and Phelps show how a given penal moment’s complex reality defies Christie’s reductive labels like “classicism” or “neopositivism,” and they instead caution that pendular metaphors hazardously silence resistance movements that linger and pursue penal change even when their preferred policy position falls into disfavor. In focusing our attention on the sites of struggle where penal change actually happens, Goodman, Page, and Phelps acknowledge that perennial contestation against a penal status quo frustrates conventional accounts that both underemphasize the role actors play and that characterize penal change as neat shifts from one moment to the next. The “agonistic perspective” they propose amplifies voices that lobby, shout, and murmur against the prevailing penal order, and it positions contestation as the driving force of penal change, rather than an incidental footnote. Breaking the Pendulum thus separates discourse from practice, elites from frontline practitioners, and overarching narratives from regional and local variation. At the same time, the agonistic perspective’s focus on struggle muddies the putatively tidy categorical distinctions between leniency and punitivism, and between the good times and the bad.
Yet the agonistic perspective that Goodman, Page, and Phelps advance inspires two related concerns. One concern arises from the narrowly operationalized “struggle” that they contend serves as the substantive and methodological guidepost for studying penal change. Their reliance on observable—what I call “manifest”—expressions of opposition to the status quo alerts us to struggle that appears in the historical record, but this exacts too high a price from a subordinate to make struggle apparent to the one curating that record. Contestation comes in many forms, and Breaking the Pendulum sets the scope for those contests so that unobservable—what I call “latent”—challenges do not enter into view. In assembling a theory of penal development, Hurston’s epigraph forewarns against precisely this error of misconstruing a lack of resistance, or a lack of resistance in a manner observable to certain eyes, as acquiescence to power’s exercise.
The agonistic perspective also produces yet another concerning form of latent challenge. Goodman, Page, and Phelps contend that, in studying penal change, consensus is axiomatically “illusory.” Yet even to speak of penal change presupposes the existence of some kind of penal stability. What Goodman, Page, and Phelps count as the absence of consensus obscures those platforms that have been taken off the policy table as deserving serious consideration. There is, after all, consensus that some penal reforms will not get taken seriously. Agonism explains the struggles between proponents of competing interests who presuppose one another’s legitimacy to engage in conflict over ideal states of affairs. Dispute may be fierce, and possibly even appear violent, while still remaining agonistic. Yet there is also a whole field of complementary kinds of political conflict—which democratic political theorists call antagonistic—between proponents of competing positions who treat one another as presumptively illegitimate. Placing antagonistic disputes alongside agonistic ones more comprehensively explains not just penal change, but also stability. Such an approach also provides the beginnings of a theory of penal power itself.
PENAL STRUGGLE
Goodman, Page, and Phelps contend that struggle is axiomatically the “motor” that “produces” penal change, and it is accordingly where one must first turn to study how penal development unfolds. Goodman, Page, and Phelps tell us struggle is “synonymous” with contestation (Goodman, Page, and Phelps Reference Goodman, Page and Phelps2017, 8). They also tell us what struggle does—it is the “motor force of criminal justice history” (ibid., xi) and the “motor of penal change” (ibid., 3). Moreover, they tell us what forms struggle may take—these include “conventional political behavior,” “subversion,” and “disruption” (ibid., 11). But we should also inspect what struggle is. To do this, we must patch together an understanding of struggle from where Goodman, Page, and Phelps see it, namely from those moments during American criminal justice history’s titular “long struggle” when agonists mobilized a position contrary to a status quo in an effort to redirect punishment toward a preferred state of affairs.
Struggle’s first feature, then, is that it is manifest. After all, we cannot study the thing we cannot see. But for struggle to be manifest, there is an evidentiary reliance on the existence of someone making contestation known in some fashion that is identifiable in the record. The matter of proof, therefore, hangs on determining what “counts” as contestation rising to the level of observable “struggle.” For example, Goodman, Page, and Phelps’s typology of the forms that struggle may take is catholic: it encompasses material expressions including hunger strikes and political lobbying, and symbolic expressions including “efforts to shape collective understandings” (ibid., 146). The only acts their typology excludes are those not “patterned” and that “generally do not produce serious changes in criminal justice regimes” (ibid., 11). But what meets that high bar of producing serious change? Regardless of struggle’s defining indices, all the examples of struggle that Goodman, Page, and Phelps offer are manifestly identifiable as voiced opposition.
A rich tradition of scholarship warns that not all opposition appears, or is voiced, or is even for that matter identifiable as such (Lukes Reference Lukes2005; Scott Reference Scott1985; Reference Scott1990). I refer to unobserved challenges to the penal status quo as “latent.” Two forms in particular present conundrums for students of punishment. As the scope of this Review Essay precludes resolving either one, I instead merely note them and set their respective stakes.
The first latent challenge is unobservable as struggle, yet deserves to be considered as an expression of resistance. Exclusive reliance on manifest expressions of resistance—when someone in a subordinate position “pushed back” against superior force—is neat for evidentiary purposes, but messy for a theory of power. The field of subaltern studies, for example, arose out of dissatisfaction with prevailing scholarly oversight of how power structures struggle’s absence in the historical record. It counsels us that, say, a victim manifestly unable to demonstrate “forcible” resistance to a rapist’s advances latently did not, to borrow Hurston’s language, “enjoy it” (Estrich Reference Estrich1986); that when peasants manifestly declined to overthrow exploitative landlords, they latently renegotiated and sabotaged the terms of their subordination (Guha Reference Guha1999); that when women Pietists manifestly embraced patriarchal religious practices, they latently claimed insurgent belonging in an otherwise-male space (Mahmood Reference Mahmood2005). What appears to us as the absence of manifest struggle, then, may very well just be latent struggle deserving closer scrutiny. But just because Goodman, Page, and Phelps’s agonistic perspective privileges manifest challenges to a penal status quo, the methodological concern is hardly insuperable. Future applications will surely refine our understanding of moments of resistance, contestation, friction, and whatever other weapons of the weak that defy identification as challenge and struggle. As concerns go, this first class of latent struggle is an opportunity rather than a nonstarter.
There is, however, a second class of latent challenge to the penal status quo that the agonistic perspective is not equipped to explain, and for which we need to expand our understanding of penality. This second class of latent struggle requires understanding how Goodman, Page, and Phelps’s theory of penal development emphasizes change and underplays stability.
PENAL STABILITY
Goodman, Page, and Phelps’s agonistic perspective ably succeeds in accounting for penal change. But accounting for penal change alone leaves us unprepared to theorize how power orders the penal field. A complete theory must further attend to what has been “ordered out” of the set of actors who count as having “struggled” toward “penal change”; a full account must, in other words, theorize penality writ large (Garland Reference Garland2013). To that end, Goodman, Page, and Phelps argue that struggle is ubiquitous and endemic to the penal field, and that consensus is “illusory” (Goodman, Page, and Phelps Reference Goodman, Page and Phelps2017, 13). This is not a modest claim. Yet although Goodman, Page, and Phelps correctly note that some contestation over penal orientations is constant, one need not look too far to notice that there are some positions over which consensus is not just fleetingly possible, but also decidedly real and stable.
Take crucifixion, for example. To my knowledge, no reformer currently advocates the reintroduction of crucifixion as a penal technique. Nor has crucifixion been taken seriously at any point during the more-than-two-century timespan that Breaking the Pendulum covers. On the contrary, although a movement seeking to reintroduce crucifixion may yet enjoy a groundswell, nonetheless the sweeping derision it should expect to receive reflects the absurdity of some kinds of contest—and, by implication, some level of stability in the penal field.
As Foucault detailed in the famous opening description of Discipline and Punish that recounts the transition from the grotesque, public, and spectacular torture of Damiens to the regimented, isolated, and clinical confinement of the docile, penal change is as much about why some technologies no longer make sense as why others still do. To be sure, rereading Discipline and Punish through an agonistic lens troubles Foucault’s admittedly loose historicism and replaces it with a more accurate portrayal of the transition from the scaffold to the penitentiary that is not quite so (1) neat a rupture, (2) mechanical a transition, or (3) flat a homogenization. But Goodman, Page, and Phelps conceptualize the struggle that drives penal change so narrowly that we have little to no basis for understanding why public and spectacular torture did not just subside; rather, it disappeared altogether and then became patently absurd.
Crucifixion, as with other techniques of spectacularly torturous punishment, is thus so stably outside the penal field’s mainstream that we do not even bother to diagnose the existence of a consensus on the matter. But, diagnosis or no, consensus is there. Crucifixion is by no means a strawman; instead, from the mainstream perspective, it is the very absurdity of supposing someone might advocate reintroducing crucifixion that drives to the heart of the second class of latent struggle for which Goodman, Page, and Phelps’s agonistic perspective is inapt.
The problem is that Goodman, Page, and Phelps overlook how the agonistic perspective reframes some policy positions as presumptively not legitimate. More concretely, agonism accounts for contestation between mainstream positions, but offers less of an account for why policy positions are relegated from the mainstream to the fringe (and, in the case of crucifixion, where “fringe” is itself a charitable designation, somewhere well beyond). Mainstream actors complained about the failings of either the Pennsylvania or Auburn systems of confinement (ibid., ch. 2), but why was mass clemency too fringe a resort to brook? Registries emerged as a shibboleth of mainstream sex offender control (ibid., ch. 5), but why did the fleeting experiment with surgical castration remain its fringe? The distinction here between “mainstream” and “fringe” is doubtless too reductive. For example, even in its dormancy throughout the Progressive Era, penal repression enjoyed its proponents (ibid., ch. 3). Nonetheless, the plasticity of categories like mainstream and fringe makes them useful in querying how penal practices move from one to the other.
Yet some positions are still hard to square with Goodman, Page, and Phelps’s agonism. Once a position is taken seriously in the penal field as a challenge worthy of consideration, it becomes part of a manifest struggle. The agonistic perspective then helps explain how challenge serves as a motor for enabling penal change. But that occurs only at the tip of a wide-bottomed pyramid that is layered with the imagined possibilities of punishments, including even the possibility of no punishment at all, that were never taken seriously to begin with. For example, Goodman, Page, and Phelps cover the debate during mass incarceration’s early years between the proponents of “custody” who worked to confine and punish, and those of “treatment” who worked to “cure” those under state control (ibid., ch. 4). They note that the custody/treatment binary was never as neat as the heuristic might suggest, as the two impulses were “invariably blended or braided” (ibid., 83). But although the agonistic perspective is handsomely equipped to explore the inner workings of those two sides of the struggle over punishment, it cannot account for why those two sides exhausted the proposals available at the time. It is harder to fit into their perspective a workable theory for why other policy positions were relegated from mainstream to fringe, and perhaps even more analytically important, from fringe to absurdity.
Acknowledging that crucifixion has been taken off the proverbial table of sensible policy options shows how Goodman, Page, and Phelps’s claim that contestation is axiomatically constant presupposes a kind of stability and consensus. The work that remains is to circumscribe under what circumstances “struggle” gets to count. This requires differentiating between how sensible—or legitimate—penal reforms seem. To select a briefly illustrative smattering, from the perspective of the penal mainstream: (1) different styles of confinement and community control are resolutely legitimate; (2) evidence-based justice reform’s legitimacy is waxing; (3) the death penalty’s legitimacy is waning; (4) prison abolition’s legitimacy is as anemic as ever; and (5) crucifixion’s legitimacy is laughable. In providing tools to understand how a legitimate policy platform acquires popularity, stabilizes, and subsides, agonism can comfortably explain the first three cases.
However, the fourth and fifth examples—prison abolition and crucifixion—are harder cases for agonism. Goodman, Page, and Phelps note that abolitionists have secured important gains in criminal justice, but pure and total prison abolition itself has never been one of them. Rather, success historically follows only upon abolition’s mutation into other more politically palatable desiderata. Penologists regularly bemoan this pattern of reform’s absorption of an originally radical platform: from the movement to set capital punishment aside altogether to the procedural refinements of the Eighth Amendment machine (Murakawa Reference Murakawa2014); from the hunger strike demands to end carceral degradation wholesale to the meager petition for added glimpses of daylight as reprieve from twenty-three daily hours of its denial (Reiter Reference Reiter2016); from voiced despair about fatally withholding medical care to Realignment’s “mass-incarceration-lite” (Simon Reference Simon2014)—the wretched list continues. This does not mean prison abolition has never been taken seriously by anyone—just that it has not been taken seriously by those with a seat at the policy table, even though this may yet change. Consequently, some may claim that abolitionism has always been treated as so fringe a reform proposal that it never enjoyed mainstream consideration. Crucifixion, on the other hand, is so fringe that it is nonsense even to entertain it as a policy option.
What makes abolitionism and crucifixion such hard cases for an agonistic framework is that neither has been part of a serious struggle of the kind that has identifiably created penal change on their own terms. This is all the more noteworthy considering that prison abolitionism has endured for quite some time and with healthy support. Regardless, both positions have been “ordered out” of the criminal justice reform conversation—or, at least, the one in which Goodman, Page, and Phelps contend agonistic struggle occurs and where the business of penal reform truly takes place. The rules that determine what counts as a persuasive claim in such a conversation foreclose reintroducing crucifixion or upending punishment altogether as legitimate. Proponents of those positions are not agonists at all; they are antagonists.
PENAL ANTAGONISM
Establishing political identity through difference between competing parties—the agonistic “struggle” at liberal democracy’s core—demands recognition of a separate, “antagonistic” space for those foreclosed from entry into that agonistic struggle. Chantal Mouffe (Reference Mouffe2000; Reference Mouffe2013) explains how one cannot exist without the other; where politics is the constitution of a “we” between agonists holding competing preferences about an ideal state of “our” affairs, she argues, there is a consonant requirement to demarcate a “they” whom we designate as our antagonists.
What liberal democratic politics requires is that the others are not seen as enemies to be destroyed, but as adversaries whose ideas might be fought, even fiercely, but whose right to defend those ideas is not to be questioned. To put it another way, what is important is that conflict does not take the form of an “antagonism” (struggle between enemies) but the form of an “agonism” (struggle between adversaries). (Mouffe Reference Mouffe2013:7)
If we buy Mouffe’s claim that agonism presupposes antagonism, then the foregoing conundrums begin to fall into place. Agonists positioned in different strata of power vie for their respective interests as adversaries affording one another the presumptive legitimacy to contest—sometimes even vehemently—the propriety of their opponent’s position. This adversarial struggle is a basis of a vibrant democracy, and is the motor of penal change. But it is only one side of the coin in explaining penal development, mapping the penal field, and theorizing penal power.
On the other side of that coin, antagonists threaten to upend, and in so doing reinforce, agonistic struggle itself. In advocating for, say, the reintroduction of spectacular and gruesome barbarity (crucifixion), or the dismantling of punishment altogether (abolition), antagonists reject the premises to which agonists collectively subscribe. Ridicule and maybe even condemnation results. Mobilizing against the antagonists’ rejection of the basic premises of sensible punishment helps organize the agonists, and in its way, is therefore also a basis of a vibrant democracy. There is not just stability over what separates the antagonists from the agonists; there is also consensus about the basis for that separation. Moreover, the process that keeps consensus intact is at the same time what makes struggle appear, observably, as the punishments worth struggling over. This is how the penal field sorts punishments between agonistic struggle on one hand and consensus against antagonism on the other.
To the extent that penologists study how punishments condemn constituents, Goodman, Page, and Phelps’s agonistic perspective clarifies shifts such as, say, from the scaffold to the penitentiary or from rehabilitative to retributive penal systems. But to the extent that we might instead study the equally salient penological question of how constituents condemn punishment, what may matter more is the process by which punishments shift between mainstream, fringe, and absurd. Yet no penal history grapples with how such shifts happen—we have only the agonistic study of those penal options that constitute the already-thinkable, with few tools to account for how they became so and what was left behind. Situating agonism alongside antagonism makes intelligible such shifts as, say, the one from fringe concern to mainstream of killings by police; from mainstream to fringe of death-by-firing-squad; and from mainstream to absurdity of trial-by-ordeal.
Expanding the complement of struggles that Breaking the Pendulum considers would enrich our understanding of penal development. Studying only manifest and readily identifiable challenges to a penal status quo provides too narrow an account of penality that overemphasizes penal change and underemphasizes a plethora of other ways power orders the penal field. Opening up the agonistic perspective to encompass also latent struggle would not just trouble some of Goodman, Page, and Phelps’s axiomatic contentions that change characterizes the penal field and that it does so constantly; it would also begin the work of assembling a comprehensive theory of power in the study of punishment, and therefore, of penality itself.
