547151

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TCR0010.1177/1362480614547151Theoretical CriminologyGoodman et al.

Article

Theoretical Criminology

The long struggle:

2015, Vol. 19(3) 315335
The Author(s) 2014
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DOI: 10.1177/1362480614547151
on penal development tcr.sagepub.com

Philip Goodman
University of Toronto, Canada

Joshua Page
University of Minnesota, USA

Michelle Phelps
University of Minnesota, USA

Abstract
Bringing together insights from macro-level theory about mass imprisonment and
micro-level case studies of contemporary punishment, this article presents a mid-level
agonistic perspective on penal change in the USA. Using the case of the rise and fall
of the rehabilitative ideal in California, we spotlight struggle as a central mechanism
that intensifies the variegated (and sometimes contradictory) nature of punishment and
drives penal development. The agonistic perspective posits that penal development is
fueled by ongoing, low-level struggle among actors with varying amounts and types
of resources. Like plate tectonics, friction among those with a stake in punishment
periodically escalates to seismic events and long-term shifts in penal orientations,
pushing one perspective or another to the fore over time. These conflicts do not occur
in a vacuum; rather, large-scale trends in the economy, politics, social sentiments, inter-
group relations, demographics, and crime affectbut do not fully determinestruggles
over punishment and penal outcomes.

Keywords
Conflict, penal reform, prison, punishment, punitiveness

Corresponding author:
Philip Goodman, Department of Sociology, University of Toronto, 725 Spadina Ave, Toronto, ON, Canada.
Email: p.goodman@utoronto.ca

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316 Theoretical Criminology 19(3)

Introduction
In his 2012 Sutherland Lecture to the American Society of Criminology, David Garland
argued that some of the most important scholarship examining punishment and society
has sought to identify and explain how penality changed during the last third of the 20th
century (Garland, 2013). Attempts to understand the causes, nature, and consequences of
the USAs escalation and intensification of punishment during this period can be roughly
divided, for heuristic purposes, into two camps. First there is a group of scholars working
mostly at the national (and, sometimes, international) level. These scholars have put
forward various theories and conceptual models designed to distill and explain the most
important changes in penality.1
A second camp of scholars has analyzed punishment in specific locales at specific
times. These are often loosely referred to as case studies, to emphasize the degree to
which they bring insight, but not (necessarily) generalizability. Researchers in this sec-
ond camp often conclude that macro-level theorizing and national-level narratives
insufficiently capture the nuance and complexity of punishment on the ground.2 Their
case studies are sometimes used to support the conclusion that punishment is messy;
these scholars describe punishment as inherently variegatedor braided (Hutchinson,
2006), hybridized (Hannah-Moffat, 2005), and assembled (Maurutto and Hannah-
Moffat, 2006).3
Ideally, scholarship proceeds as a dialectical process between these two levels of anal-
ysis (Garland, 2001: vii). Yet all too often, scholars of punishment insufficiently inte-
grate the empirical findings and conceptual innovations from case studies within
macro-level theorizing.4 We propose an agonistic framework to help bridge these two
perspectives.
Focusing on the US context, we advance three claims about punishment. First, pun-
ishment is deeply and continually contested. We argue that penal change is the result of
competition between players, actors, or agonists with varying resources and differing
visions of how to prevent and sanction crime. This ongoing struggle periodically bursts
into open, intense conflict. Second, while periods of relatively less explosive conflict
appear on the surface as consensus, we argue that these moments are characterized sim-
ply by quieter conflicts. This contestation means that programmatic reforms are never
fully implemented as intended; instead, they braid various, often contradictory, penal
rationalities (see also OMalley, 1999). This constant contestation produces messiness
on the ground, which paves the road for the next penal turn. Third, we maintain that
struggle occurs within larger social conditions, which influencebut do not fully deter-
minethe nature and outcome of conflict. Thus, the agonistic perspective helps explain
why macro-level studies often see dramatic ruptures in penality, while case studies often
find variegation and contestation.
The remainder of this article unfolds as follows: we first discuss a leading theory
about the transformation of punishment in the USA during the late 20th century. After
summarizing some of the more incisive critiques of that theory, we lay out the basic
contours of our agonistic perspective by explaining its three central claims (or axioms).
In the empirical heart of the article, we explore the rise and fall of rehabilitation in
California, highlighting the on-the-ground complexity evident throughout the 1940s to

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Goodman et al. 317

1970s. Drawing on a range of sociological, historical, and criminological sources, we

argue that the generic story of the rise and fall of the rehabilitative ideal is too simple
even in Californiathe state that is often held out as having most fully embraced the
treatment model and turned most sharply away from it by the 1990s. Rather than an era
of treatment followed by a sudden divergence, we find constant contestation over the
goals, means, and character of punishmentboth inside the criminal justice system and
at the level of political maneuvering. It is this constant contestation that explains the
variegation of penal practices in the Golden State and the seemingly sudden fall of reha-
bilitation. We close with a discussion of how our agonistic framework might be useful in
thinking about penality in different places at different times.5

Theorizing punishment
Any effort to understand macro-level theorizing about the fall of the rehabilitative ideal
and rise of mass imprisonment must acknowledge the outsized role played by one
scholar, David Garland, in shaping the scholarly field. We focus here on Garlands (2001)
book The Culture of Control, the leading critiques of this analysis, and the integration
provided by our agonistic perspective. To be clear, much of what Garland proposes aligns
with our own perspective, including the import of large-scale structural shifts and new
ways of thinking about the offender in the late-modern period.
The central claim that we aim to reconceive is the rupture moment from the
penal-welfarist treatment model to the current culture of control. Garland provides
a provocative and sweeping account of these events, but pays much less attention to
contestation and variation in penal practices across these periods, a theme critics have
contested (e.g. Loader and Sparks, 2004; Savelsberg, 2002). For example, Lucia
Zedner (2002: 345) argues that even in the heyday of penal-welfarism, the most com-
mon sanction remained the fine and the prevailing legal orientation remained retribu-
tivist in its orientation. Similarly, Mary Bosworth and Emma Kaufman (2013) use a
feminist lens to argue that Garlands account creates a dystopic, de-politicized account
of punishment.
Perhaps the most important lesson from this scholarship is that there is a gap between
discourse and practice, meaning that efforts to explain penal change with a single con-
ceptual frame inevitably ignore continuities across time and variation across place. What
can sound like simple ideas (e.g. rehabilitation) are socially constructed notions with
specific meanings over time and space (e.g. Goodman, 2012; Hutchinson, 2006;
Robinson, 2008).
Responding to critics, Garland (2004: 167) acknowledged that his method of inquiry
pays insufficient attention to the place of ongoing conflict and contestation, and thus:

tends to understate the importance of the actors whose preferences and policies lost out in the
current conjuncture but who continue to be a presence in the field and to exert a pressure for
change. In doing so, it tends to misrepresent the real nature of the field, which is composed not
of fully settled practices and firmly established policies but rather of competing actors and
ongoing struggles, often with delicately balanced forces and power ratios whose equilibria are
subject to change A greater emphasis on these ongoing counter-doxic struggles, and upon

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318 Theoretical Criminology 19(3)

the distributions of power and prestige that sustain them, would have provided not just a fuller
sense of the present, but also a more adequate basis for thinking about future possibilities.

(2004: 167168)

Garland is surely correct that paying attention to conflict and contestation sheds light on
less powerful actors and policies that lose out in the competitive political arena. But
insufficient attention to diverse actors and conflict is also why Garland and others (e.g.
Pratt et al., 2005) see sudden rupture, where we and others (e.g. Campbell and Schoenfeld,
2013; OMalley, 1999) do not.
As should be clear, our focus on contestation and the role played by actors in shaping
punishment is not entirely new. This is especially the case in terms of scholarship that
examines state-level penal change (e.g. Jacobs, 1977; Lynch, 2009; Page, 2011;
Perkinson, 2010), which tends to pay careful attention to the political and correctional
figures who shape punishment. Our contribution is to use these examinations of struggle
to build a theoretical perspective on why and how penal change happens. We apply this
theoretical perspective to the shift from rehabilitative to punitive crime policy in
California in the 1960s and 1970s, but argue in the conclusion that this agonistic perspec-
tive can be useful in understanding the broader history of punishment in the USA.

An agonistic framework
Drawing from a broad range of social theory, we develop three mid-range theoretical
propositions to explain the how of penal development. Rather than describing a
movement toward an ideal, we refer to the unfolding of punishmentwhich some-
times produces sharp changes, and, at other times, reinforces existing policies, prac-
tices, and priorities. By understanding more about the process, we argue that scholars
can better understand the why of punishmentparticularly the link between case-level
research and macro-level theorizing about the structural determinants of the punitive
turn.
The agonistic framework centers on the following axiom: penal development is the
product of struggle between actors with different types and amounts of power. It is ago-
nistic because it looks directly at the competition, striving, and combat between and
among actors. Like conflict theorists (e.g. Marx and Engels, 2012 [1848]; Mills, 1956),
we view struggle as endemic to social life. Actors compete to accumulate and employ
resources to advance their positions in organizations and fields and to impose or support
their particular visions of how things should be (e.g. Bourdieu and Wacquant, 1992;
Fligstein and McAdam, 2012). Those who operate in penal organizations and within and
beyond the penal field6 struggle over status and the ability to define and implement their
conceptions of justice and, more generally, the public good (e.g. Page, 2011, 2012).
Thus, conflict takes both material and symbolic forms (e.g. Bourdieu, 1990; Bourdieu
and Wacquant, 1992; Foucault, 1977; McAdam et al., 2001). Along with explicit cam-
paigns, struggles to change penal policy and practice include efforts to alter ideas, col-
lective representations, and sentiments about crime and punishment. From this
perspective, as actors achieve dominance, they establish their vision as the prevailing

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Goodman et al. 319

orientation of the field. Authoritative actors (e.g. pundits, academics, politicians, and
penal professionals) then deem it the consensus, even as opposition to the dominant
orientation continues.
Not all actors are equally equipped to participate or ultimately prevail in competitions
over penal outcomes: individuals and groups have different amounts and compositions
of resources (e.g. Bourdieu and Wacquant, 1992). Which types of resources are most
useful obviously differs according to the nature of struggle: economic capital, for exam-
ple, is very important in contests over ballot initiatives that deal with sentencing policies.
Political capital is essential when trying to pass penal policy in legislatures. And cultural
capital is useful when fighting battles at the level of public opinion. Axes of inequality
(e.g. race, gender, sexuality, and immigration status) greatly affect the hierarchical distri-
bution of capital, and, therefore, actors capacity to shape penal outcomes. The penal
game is thus tilted toward those with the most resources who desire to maintain the
status quo (what Fligstein and McAdam (2012) term the incumbents) and away from
actors with fewer resources who want to reform or radically alter existing practice (the
challengers).
The second axiom of our agonistic perspective builds on the first: contestation over
how (and who) to punish is constant; consensus over penal orientations is mostly illu-
sory. There is a tendency to describe periods of general consensus over penal orienta-
tions and practices, and, conversely, to portray major ruptures and seismic shifts in
penality. In contrast with scholars who view these explosive conflicts as indicia of radi-
cal transformations, we view them as part of longer, ongoing struggles. It is also easy to
mistake periods of relative quiescence for settled consensus; we argue that these periods
are simply evidence of quieter, less visible conflictsparticularly symbolic struggles
that unsettle penal practices and pave the road for the next penal pivot. This is not unlike
how plates in the earth constantly rub against each other, producing degrees of friction
and occasional dramatic shifts; although not a natural phenomenon, penal change (like
an earthquake) is often both the product of an immediate set of catalysts (including con-
temporaneous struggles in other arenas and locales) and the result of struggles with long
historical roots. Even when there is not open warfare and one side appears to have
won, opponents of the status quo continue their efforts to shape public and political
opinion in ways that favor their positions. As a result, periods of dominant penal orienta-
tions obscure as much as they reveal.
Our third and final axiom relates our perspective on macro-level theorizing about
national and international trends that shape penality: large-scale trends in the economy,
the political arena, social sentiments, inter-group relations, demographics, and crime
affect (or condition)but do not determinestruggles over punishment and, ultimately,
local penal outcomes. Agents construct social reality, but within particular structural
contexts (e.g. Bourdieu, 1990). Objective conditions impinge on our freedom to shape
the social world. Garland and other macro-level, contemporary theorists of punishment
astutely delineate structural factors that have contributed greatly to current penal trends.
These conditions, however, do not directly shape punishment; they are filtered through
national, state, or local penal fields (e.g. Campbell and Schoenfeld, 2013; Page, 2012).
They are also filtered through organizations, which can be viewed as mini-fields (e.g.
Emirbayer and Johnson, 2008; Fligstein and McAdam, 2012). Struggle can be thought of

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320 Theoretical Criminology 19(3)

as nested, with social structural conditions filtering first through fields (e.g. penal, politi-
cal, bureaucratic, and juridical) and second through organizations (e.g. departments of
corrections, state legislatures, and court systems).

Penal change in the Golden State

We selected California as our central case study because it provides especially rich ter-
rain for exploring an agonistic view of punishment. California is considered to have been
both one of the most advanced correctionalist penal regimes during the 1950s and
early 1960s (Barker, 2009: 47) and one of the worst examples of warehouse prisons
from the 1980s onward (e.g. Irwin, 1980; Page, 2011; Simon, 1993). Thus, if there is
anywhere that epitomized sudden, maybe even cataclysmic, penal change, mid- to
late-20th-century California is that place. But even in California, punishment was sub-
stantially variegated throughout the Treatment Era. We argue that this blend of treatment
and punishment-oriented practices and perspectives was the direct result of struggles,
inside and outside of the criminal justice system for over four decades. Eventually, these
struggles fueled the decline of the rehabilitative ideal and ascent of punitive punishment,
setting the stage for new, 21st-century conflict.

The standard narrative: The rise and fall of Californias treatment ideal
The rehabilitative program officially launched in California in 1944, when Governor
Earl Warren signed the Prison Reorganization Act. This rehabilitative ideal cen-
tered on the premise that crime, a product of psychological and social maladies, was
detectable, understandable, and treatable (Allen, 1981; Garland, 1985; Irwin, 1980;
Simon, 1993). Indeterminate sentencing was the programs cornerstone; ideally, prison-
ers would receive an open-ended sentence so that release depended on participation in
the program, not on past criminal actions. Although no state implemented total indeter-
minate sentencing (i.e. one year to life for all felonies), California came the closest, with
sentences such as one to 15 years for forgery or second-degree burglary, and five to life
for first-degree robbery (Irwin, 1980: 41). Drawing on the medical model, the parole
board (called the Adult Authority), in theory, would only release prisoners after they
were cured of their criminogenic aliments (and, presumably, had become better citizens
(Janssen, 2009)).
In the early years of the Treatment Era, California instituted extensive programs
and innovative practices to facilitate prisoners psychosocial transformations. At the start
of their sentence, convicts were sent to a reception-guidance center for classification,
a central feature of the rehabilitative paradigm. Through a battery of tests and lengthy
interviews, prison staff evaluated and diagnosed the convict and devised his or her treat-
ment planan ongoing process that continued throughout the persons time in prison
(Holt, 1998; Irwin, 1970, 1980; McCarty, 2004). Recommended programs often took the
form of group counseling, religious instruction, and self-help groups such as Alcoholics
Anonymous and Narcotics Anonymous (McCarty, 2004: 60). Educational and vocational
opportunities also expanded, the former taking the form of elementary, high school, and
post-secondary studies (Irwin, 1980: 46; McCarty, 2004: 58).

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Goodman et al. 321

In California (as elsewhere) putting prisoners to work was a venerable practice; but
after the Second World War, the California Department of Corrections mandated work
for all capable prisoners and formally evaluated work records when determining release
decisions (McCarty, 2004: 55). Prisons across the state developed extensive work pro-
jects and assigned an increasing number of convicts to road and forestry work camps
(Goodman, 2012). These efforts were deeply gendered: rough work was seen as a way to
restore male prisoners to healthy, masculine citizenship (Janssen, 2009). Women prison-
ers were given jobs considered feminized tasks, including sewing and laundry, to build
better female citizens (Kruttschnitt and Gartner, 2005: 73; see also Bosworth and
Kaufman, 2013; Carlen, 1988).
As it sought to transform prisons into correctional institutions, California also
looked to parole and probation. According to Jonathan Simon (1993: 76), a clinical or
treatment model dominated parole in California from 1953 until the late 1960s, and
had two central prongs: individualized treatment and interpersonal relationships.
Like social workers, parole agents employed objective methodologies such as inter-
views, residential inspections, and medical histories to build a trusting relationship with
the parolee and help manage his [or her] relationship with the community (Simon,
1993: 7677). Add to this intensive supervision of smaller caseloads, treatment-oriented
programs for drug addicts, and outpatient clinics for parolees to receive psychological
counseling (Lynch, 2000: 42; Simon, 1993: 8188), and the result was a strong emphasis
on transforming the offender. Among probation practices, the state invested substantial
resources, particularly into juvenile probation, to reduce caseload sizes and provide more
individualized programs (Lerman, 1975).
In sum, correctionalists oriented the criminal justice systemfrom sentencing to
parole supervisiontoward rehabilitation. Overseeing the initial implementation of
these ideas in California, Treatment Era reformers believed this radical transformation of
punishment was possible, perhaps even inevitable, and would lead to the end of prisons
as we knew them (e.g. Rothman, 1971: 295).
As has been well documented, the opposite happened in California and across the
country: in just one decade (the 1980s), imprisonment rates more than doubled in
California. At the same time, it seemed to many that the entire rehabilitative model was
crumbling around them (Allen, 1981; Garland, 2001). By 1976, indeterminate sentenc-
ing had been dismantled, politicians were passing wave after wave of longer sentences
(including mandatory minimums for an ever-growing list of offenses), and the ideologi-
cal emphasis on classification, treatment, counseling, education, and productive work
was being drowned out by calls for incapacitation and deterrence (e.g. Irwin, 1980; Page,
2011). Soon, California was engaged in one of the largest prison-building sprees in his-
tory, with each new prison financed using taxpayer bonds to build now and pay later
(Campbell, 2014). By 2000, it had the 13th highest imprisonment rate in the country
(Beck and Harrison, 2001).
If California epitomized the rehabilitative spirit in the late 1960s, a decade later it
appeared to be on the leading edge of a new, extremely punitive era. This puzzle is cen-
tral to many scholars efforts to describe and explain penal change in California and
beyond (e.g. Garland, 2001; Irwin, 1980; Petersilia, 1998; Ruth and Reitz, 2003; Simon,
1993; Tonry, 2004). If it is the case that a progressive ideology of treatment dominated

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322 Theoretical Criminology 19(3)

the penal field in California in the period after the Second World War through the late
1960sand in such a dramatic and complete wayhow could the same state represent
the vanguard of a radically different way of doing punishment a decade later? What
explains the drama, rapidity, and sources of such an about-face?
In the next section, we argue that rehabilitative practices were never fully imple-
mented as intended. Even at the zenith of the rehabilitative era in the Golden State,
penal practices varied widely, both because of substantial implementation gaps and fail-
ures, and because punishment braided different (and, sometimes contradictory) orien-
tations. While some of the treatment practices developed in the 1950s and 1960s were
indeed novel, these same practices were often designed and initiated with both treatment
and punitive goals in mind. Struggle fueled this variegation and, in the context of major
political and cultural developments, facilitated (over several decades) what other schol-
ars describe as a sudden rupture of Californias penal regime.

A limited ideal: Variegated punishment in Californias Treatment Era

Rehabilitation programs suffered from a host of limitations and failures. Nowhere was
this clearer than the classification process, a hallmark of the treatment model. Without
valid diagnostic methods and effective cures for criminality (Irwin, 1980: 43), serious
understaffing and overcrowding issues in the Reception Guidance Centers limited the
extent and quality of the classification process, with staff (as early as the 1970s) rushing
the process to maximize bed space (Holt, 1998; McCarty, 2004). Similarly, counseling
and education programs were badly understaffed. Programs mostly consisted of group
counseling led by social workers, prison officers, and prisoners themselveswith the
result that those delivering the programs lacked the training needed to prepare them for
prisoners many challenges (American Friends Service Committee, 1971; Davidson,
1974; Irwin, 1970, 1980; McCarty, 2004). Scholars and critics agreed as well that many
vocational training programs were woefully inadequate; for example, at San Quentin
there were 350 places in the trade programs for a population of over 3,500 (American
Friends Service Committee, 1971: 89; Mitford, 1974: 86). When positions did exist,
employment opportunities (and skill-building) were often limited to keeping the prison
running and building cheap public works (McCarty, 2004: 55; Mitford, 1974).
Not only was rehabilitation under-implemented, but from the beginning programs
expressed more than treatment-oriented goals. In particular, many administrators (often
among the strongest promoters of rehabilitation) did not view changing, controlling, or
even punishing prisoners as mutually exclusive goals; they viewed them as complemen-
tary insofar as it was only through coercion and control that one could achieve rehabili-
tation inside prisons (Grosser, 1960; Jacobs, 1977; McGee, 1981; Mitford, 1974). This
was clear from the structure of the indeterminate sentencing model itself, predicated on
the idea that prisoners should be confined for as long as it took for them to be
rehabilitated.
In practice, rehabilitation programs frequently blended the impulses to transform,
manage, and punish prisoners. For instance, classification was used to assign prisoners
to programs, but it was also a form of control: many prison officials used a pattern of
privilege gradation, [with] the threat of withdrawing privileges [and programs as] one of

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Goodman et al. 323

the primary techniques of control within the prison (Wright, 1973: 49). As a former
prisoner explained:

A man in prison lives by his central file folder He lives in fear of it and in holy expectation
of what good may come from it. Its contents determine everything that will happen to him from
his custody status in prison to his eventual chances of making parole.

(Mitford, 1974: 89)

As Wright (1973: 155) argues, even the best prison programsthe honor blocks, the
conjugal visiting program, the gradation of prisons from minimum to maximum secu-
rityfunctioned as control mechanisms; staff meted out progressively harsher punish-
ments for resistance to the prison regime, and progressively great[er] privileges for
compliance. The indeterminate sentence was key to this system of privileges: if prison-
ers did not participate in their program, they did not receive parole. When such carrots
did not suffice to produce control, prison staff reverted to the use of brute force, a prac-
tice as old as the penitentiary itself (Wright, 1973: 157; see also Rothman, 1980).
In other cases, new rhetoric was used to reinforce old punitive practices. For example,
the creation and use of the Adjustment Center (AC) was framed as a more progressive
version of segregation, offer[ing] programs so that segregated inmates could demon-
strate a positive attitude and earn their return to the general population housing (Holt,
1998: 34). California prison officials claimed the AC had positive and constructive
treatment objectives (quoted in Mitford, 1974: 106). And yet, as Irwin (1980: 61) docu-
ments, these centers were segregation units where prisoners were held for indefinite
periods with reduced privileges and virtually no mobility and no intensive therapy was
ever delivered. Thus, behind the lofty rhetoric of treatment, these units were, for many
prisoners, experienced as another form of punitive isolation.
Deficiencies plagued community corrections, too. Just as treatment staff had no
proven way to cure criminals, the Adult Authority (parole board) lacked reliable and
scientific methods to determine whether prisoners had been rehabilitated (Simon,
1993). Parole Board members typically had backgrounds in law enforcement rather than
social work or social science (as intended), and the Board relied primarily on the indica-
tors that had always determined release decisions in California and elsewherefactors
such as a persons past record, in-prison behavior, political activity, and race (Davidson,
1974; Irwin, 1970, 1980; McCarty, 2004; Wright, 1973). Once released into the com-
munity, ex-prisoners and probationers received far less assistance or therapy than the
social work image of parole suggested (Irwin, 1980; Simon, 1993). Although officials
sought to de-emphasize the policing aspects of supervision, the threat of arrest remained
a central means of motivating parolees and protecting public safety (Lerman, 1975;
Simon, 1993).
In sum, the reality of rehabilitation in California in the decades following the Second
World War was far more variegated than scholars typically suggest. On each measure of
rehabilitation, there were major gaps between ideals (driven by conscience) and actual
implementation (driven by convenience) (Rothman, 1980). Rehabilitation was the
dominant penal orientation, but it did not supplant punishment and control as leading

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324 Theoretical Criminology 19(3)

logics.7 Moreover, the rehabilitative regime facilitated a growth of state power and, at
least in some cases, significant abuse of that authority. Rehabilitation was a form of pro-
ductive power designed to control as well as help offenders (e.g. Foucault, 1977). Below,
we document how struggleinside of prisons and in the broader political fieldstruc-
tured the variation in practices and led to the fall of the Treatment Era.

Inside struggles
Inside Californias prisons, the conflict was organized primarily between two perspec-
tivesthe old time officers and administrators perspective (hereafter, Custody) and
that of the professional counselors, psychiatrists, social workers, and new administrators
(Treatment).8 Treatment staff worked to cure inmates, while Custody focused on
confining and punishing, believing prisoners to be morally deficient and untrustworthy
(Irwin, 1980: 124; Page, 2011; Powelson and Bendix, 1951: 78). The result was that
Custody-oriented staff offered little support to Treatment programs (or to their Treatment-
oriented colleagues). They believed Treatments permissive, soft, feminine vision
denied personal responsibility and created the opportunity for security breaches (Irwin,
1980; Page, 2011; Powelson and Bendix, 1951).
Custodys opposition to the rehabilitative enterprise was not simply a matter of con-
flicting visions; it was also an issue of status, resources, power, and authority. Former
administrator Norm Holt (1998: 6) explains, As the counselors work multiplied, so did
their number, authority and prestige As Custody was forced to share the stage with
treatment, the status of uniform staff suffered. The conflict was most intense at the
older, higher security prisons like Folsom, where veteran officers and administrators
strongly embraced the custodial orientation and deeply resented the intrusion of outsid-
ers into their institutions (McCarty, 2004; Page, 2011; Wilkinson, 2005).
This conflict simmered throughout the 1940s, 1950s, and 1960s, as security forces in
many ways kept the upper hand (e.g. Holt, 1998: 8). Certainly, prison officials at the
California Department of Corrections (CDC) headquarters (e.g. Director Richard
McGee) and some wardens were overtly pro-Treatment. Nonetheless, Custody staff were
the most numerous and powerful actors in most prisons, with prominent Treatment staff
arguing that in practice, all activities are subordinate to the decisions of Custody
(Powelson and Bendix, 1951: 78). As Powelson and Bendix (1951: 82) explain in the
case of psychiatrists:

It is hardly surprising that psychiatry in prison consists primarily in therapeutic practices which
can have punitive or disciplinary implications: electric shock, insulin shock, fever treatment,
hydrotherapy, amytal and pentothal interviews, cisternals and spinals, and so onthat is
everything except psychotherapy.

Treatment staff who were unable or unwilling to adapt to the conflict quit; those who
remained scaled back their therapeutic ambitions and aligned their practices more closely
with Custodys interests (Holt, 1998; Irwin, 1980; McCarty, 2004).
It was, and remains today, a truism that the success of Treatment depends on the coop-
eration of administrators and prison officers, each capable of undermining Treatment

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Goodman et al. 325

practices in the name of security (e.g. Liebling, 2007). This was especially true in
California, where some correctional officers were supposed to lead (not simply facili-
tate) rehabilitation activities, such as group counseling. Officers ignored recommenda-
tions made by Treatment-oriented staff by classifying convicts and assigning them to
programs according to security risks and convenience factors rather than rehabilitative
needs (Irwin, 1980: 130). They also punished inmates who had too many applica-
tions for medical or psychiatric aid (Powelson and Bendix, 1951: 80). No matter how
stridently administrators like Director McGee preached rehabilitation as a new way of
doing punishment, programs varied due to ongoing struggles among those who had the
power to translate lofty goals into everyday practices (see Studt et al., 1968).
By the late 1960s, this uneasy balance between Custody and Treatment broke down
as an anti-authoritarian spirit swept across and beyond college campuses (Irwin, 1980:
132133). Political and cultural shifts outside prison walls brought a new generation of
Treatment staff into the prisons. Many saw themselves as social activists whose purpose
was to empower prisonerscontrary to the interests of Custody. Furthermore, as prison-
ers became increasingly radicalized, many also became ever more critical of rehabilita-
tion in general. But it was indeterminate sentencing that upset them most, in part because
it kept them in a stressful state of suspended animation (Petersilia, 2003: 63). Prisoners
opposition (and, in some cases, unruly behavior) provided fuel to Custody, whose long-
time inclination was to discriminate against political dissidents, racial and ethnic minori-
ties, and those who refused to play the rehabilitation game (Cummins, 1994; Irwin, 1980;
McCarty, 2004; Wright, 1973).
Whereas many prisoners had, in the 1950s and 1960s, recognized the leverage to be
earned by viewing themselves as sick, many now insisted that they simply lacked the
same opportunities for advancement enjoyed by those in the middle and upper classes
that they were victims of the system (not of their bad choices or pro-criminal think-
ing) (Irwin, 1980; McCarty, 2004).9 Prisoners began to demand rights and improved
confinement conditions; inter-racial strikes broke out at Folsom and San Quentin prisons
and a group of convicts (with outside aid) attempted to start a Prisoners Union
(Cummins, 1994). Activist lawyers helped convicts file lawsuits demanding changes to
prison rules, practices, and conditions. At this time, jailhouse lawyers and prisoner
rights lawyers became significant actors in the penal field. In California and other states
(e.g. Illinois and Texas), they increasingly used the courts as a forum of struggle, fighting
the law with the law (Cummins, 1994; Jacobs, 1977; McCarty, 2004; Page, 2011;
Perkinson, 2010).
Racial divisions were at the core of this struggle. Tension and conflict between mostly
White line staff and prisonerswho were disproportionately Black and Brown
was not, itself, anything new. But what was new is that politically radical African
American prisoners such as George Jackson managed, like never before, to organize
their fellow convicts to fight back against their captors racist practices which, they
argued, would not end until there was a grassroots revolution that forced elites to disman-
tle the penal system. In some prisons, there was open warfare (Cummins, 1994; Irwin,
1980; McCarty, 2004; Page, 2011). As a result, correctional administratorsincluding
progressives like McGeebecame increasingly concerned about the perceived threat of
the Black Muslims and other racialized groups.

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326 Theoretical Criminology 19(3)

Custody reacted to the radicalization of Treatment staff and prisoners, as well as what
they viewed as the intrusion of activist lawyers and the federal courts, by condemning
rehabilitation in favor of law and order behind the walls (Campbell, 2014; Irwin, 1980;
McCarty, 2004; Page, 2011). Prison officers formed the California Correctional Officers
Association (CCOA) in 1957, which became an important actor in both the penal and
political fields, fighting for tougher punishment, challenging Treatment staff members
place inside prisons, advocating for super-maximum security facilities, and lobbying
the legislature to enact harsher sentencing policies (Page, 2011). As protest, violence,
and media coverage of the turmoil grew, prison officials in Sacramento focused on secu-
rity. Whereas opponents of rehabilitation had previously argued Treatments supporters
were nave, now they were deemed downright dangerous; the liberal approach to pun-
ishment was said to coddle convicts, enable agitators (especially African American and
Chicano radicals), and compromise security (Irwin, 1980; Mitford, 1974).
This heady mix of conflict contributed to the end of the Treatment Era (such as it
was) and the ushering in of new, more punitive policies and practices. Riding the storm,
CDC Director Raymond Procunier, appointed by Governor Ronald Reagan in 1967,
increased the use of isolation and segregation, focused resources (and punishments) on
gang members and their activities, allowed Custody staff to employ lock-downs as they
saw fit, and approved new security measures such as involuntary body searches (Page,
2011). Treatment budgets (already meager) were slashed, and administrators hired hun-
dreds of new officers with money that otherwise would have gone to education and
Treatment programs (McCarty, 2004: 255). As these examples indicate, Californias
dominant penal orientation had shifted greatly by the end of the 1970s.

Political struggles
Conflicts within Californias prisons were shaped by the broader political climate. The
rise of rehabilitation took place in the context of profound social changes. Riding the
high of the post-Second World War economic boom, many expressed unprecedented
levels of faith in the ability of the state to find scientific cures for societys ills (e.g.
Janssen, 2009). Governor Earl Warren, elected in 1942, exemplified this surge of pro-
gressivism. A long-time civil servant and progressive, he respected professional exper-
tise and the autonomy of state agencies and their leaders. Before appointing Richard
McGee as head of the newly created CDC, Governor Warren told him: I will never do
anything political to interfere with your prisons if you come here. And, if I ever find out
that you have done anything political, Ill fire you (Newton, 2007: 179). Governor Pat
Brown governed in much the same mold as Warren, especially in the area of corrections
(Barker, 2009: 59; McGee, 1981: 24), even electing McGee to a cabinet-level post and
continuing to support progressive programs (McGee, 1981: 24).
Yet even in this supportive context, correctionalists struggled to implement their
agenda. Politicians, activists, and interest groups claimed that rehabilitation programs,
indeterminate sentencing, and judicial leniency fueled lawlessness inside and outside of
prisons. One of the strongest contrary voices was from law enforcement (Custody on
the street). McGee explains, for example, that local police chiefs often called meetings
with state leaders when crimes were committed by parolees, decrying the leniency of

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Goodman et al. 327

the courts and the state parole board. LAPD Police Chief William Parker would demand
that the governor and those present listen to some cases, and

then he would pull out half a dozen summaries of the worst cases his staff had been able to find
in the police files. With a flair for the dramatic, he was able to make the facts of any case sound
even worse and dismissed as irrelevant the fact that his sample may be in the ratio of one in
twenty-five thousand.

(McGee, 1981: 121122)

According to McGee (1981: 122), this kind of political push-back from law enforcement
facilitated punitive action on everything from sentencing bills to prison governance and
parole releases.
During the 1950s and early 1960s, individuals and organizations that opposed reha-
bilitation and supported tougher penal approaches were loosely organized (at best) and
enjoyed few policy victories. They were challengers in the penal field. Their political
fortunes shifted when Ronald Reagan became governor in 1967. Taking a page from
Nixons Southern Strategy, Reagan positioned himself as a populist anti-Warren,
deeply concerned about the countrys moral breakdown, as evidenced by student pro-
tests, various power movements, feminism, hippy gatherings, and the liberal, Treatment
Era approach to punishment. Despite overseeing a significant decrease in the states
incarceration rate (Gartner et al., 2011), Reagan publicly linked crime, disorder, and
progressive policies. He argued that the Treatment model let street thugs (coded as
urban and Black and Brown) off easy while jeopardizing the safety and security of law-
abiding citizens (coded as suburban and White). It was time to fight for the people
against street criminals and the elites who coddled them (Barker, 2009).
Advancing the cause of the advocates of law and order, Reagan teamed up with
California Senator George Deukmejian in 1967 to pass SB 8587, which, among other
things, imposed mandatory prison sentences of 15 years to life for persons convicted
of inflicting great bodily harm while using a deadly weapon in the commission of a
robbery, burglary, or rape (Barker, 2009: 6768).10 Such legislation framed punish-
ment as necessary to avenge victims, rather than rehabilitate offenders (see also
Campbell, 2014). It symbolized a turn away from rehabilitative penality and toward
retribution and incapacitationa full decade before the reported fall of the rehabilita-
tive ideal in California.
In the 1970s, this law and order bloc within the penal field grew stronger and better
organized. After a failed bid for the US Senate, State Senator HL Richardson created the
Law and Order Campaign Committee in 1976, with the goals of advancing victims
rights and unseating policymakers and judges who were criminal coddling and soft
on crime (McCoy, 1993: 2224; Page, 2011: 2829). Los Angeles Police Chief Edward
M Davis was the groups honorary chairman, and former Los Angeles Mayor Sam Yorty
and ex-Police Chief Tom Reddin were on its advisory board.11 This loosely connected
group of dedicated anticrime entrepreneurs was well recognized in Sacramento and in
newspapers and broadcasts as an organized coterie of agitators for the conservative
agenda (McCoy, 1993: 24).

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328 Theoretical Criminology 19(3)

While the law and order bloc gained major influence during Reagans tenure as gov-
ernor, it was Reagans Democratic successor, Edmund Gerald Jerry Brown, who
implemented their agenda most fully, moving the state decisively toward a just des-
serts model (McCoy, 1993; Page, 2011). Governor Brown supported major punitive
initiatives, such as mandatory imprisonment for offenders who used guns in the com-
mission of crime, and ending the Probation Subsidy Act (Barker, 2009; McCarty, 2004:
294). In 1976, Brown caved to pressure from tough on crime activists, prisoner rights
reformers, and academics to end indeterminate sentencing. The bill (SB 42) instituted
fixed prison terms and paved the way for the politicizationand increasing tough-
nessof sentencing legislation, which eventually culminated in the states infamous
Three Strikes law (Campbell, 2014). By the close of the 1970s, explicit political sup-
port for the Treatment Era was drowned out by those who would govern through
crime (Simon, 2007).
The political struggles we outline in this section are not separate from the contests
inside penal institutions that we addressed earlier. Policy outcomes from political battles
affect the size and conditions of the institutions. Moreover, shifts in discourse in the
political and penal fields (e.g. the purpose of punishment, the nature of racial divisions,
and reasons for offending behavior) filter down into prisons, parole, and other institu-
tions. As such, these political struggles indirectly affect the nature and results of struggle
within these institutions. Everyday life, then, is greatly affected by struggles inside and
outside of the institutions. To understand the culture and social relations inside penal
facilities, prison officer or parole agent orientations, and related issues, we must situate
them within particular contexts of contestation (within and beyond the institutions) (e.g.
Jacobs, 1977; Lerman and Page, 2012).12

Conclusions on spotlighting conflict

Efforts to explain contemporary penality often present a tale of radical rupture, a quick
pivot from rehabilitation (and comparatively small penal populations) to retribution and
managerialism (and very large penal populations) (e.g. Alexander, 2010; Garland, 2001).
Although dominant accounts sometimes highlight conflict, they typically introduce
struggle only at the end of the Treatment Era. The claim appears to be that consensus
held until an unexpected avalanche of opposition (itself a form of consensus) shattered
the correctional status quo.
We instead see endemic conflict rather than waves of consensus and rupture.
Contestation between actors with different types and amounts of power drives penal
change. Change is not simply the mechanical outcome of large-scale social-structural
trends; it is a dialectical process that plays out between individuals and groups in the
penal and neighboring fields. We cannot understand the variegated nature of punishment
or the various ruptures or turns in penality without a longer (and broader) view of the
ongoing contestation over the targets, processes, and goals of punishment.
Without question, rehabilitation was the dominant orientation of the Golden States
penal field in this period. However, there was never consensus about rehabilitation (as
either a philosophy or set of practices)that was an illusion supported by academics,

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Goodman et al. 329

practitioners, and journalists. Major opposition to the rehabilitative ideal existed through-
out (and continued after) the Treatment Era and took various forms, including implicit
and explicit threats, stigmatization and shunning, open protest and violence, and lobby-
ing and electioneering. Actors did not just oppose each other; they also struggled against
organizational priorities, policies, and practices (e.g. resistance from prison officers and
parole agents over the implementation of clinical programs), and wrestled over the ori-
entation of the penal field (e.g. interest groups push back against rehabilitation and
advancement of law and order). Struggle operated both at the practical level of organiza-
tional priorities and practices and at the levels of ideology and rhetoric (e.g. debates over
who and how to punish). If someone took two snapshots, one in 1973, and the next in
1980, she might indeed conclude there was a sudden reversal of fortunes. But such snap-
shots would ignore ongoing struggle and how it paved the way for the seemingly sudden
reversal of fortunes in the 1970s.
Our emphasis on actors and strife is not meant to negate or replace macro-level expla-
nations of the alleged fall of the rehabilitative ideal and rise of mass incarceration, but to
complement these perspectives. Such theorizing is essential to understanding the nature
and outcomes of competitions in the penal field. The struggles we describe did not occur
in a vacuum; they were affected by state and national-level developments. For example,
significant growth of crime rates in the 1960s and 1970s provided evidence that wel-
farist policies did not work and endangered law-abiding citizens, especially suburban
Whites (Garland, 2001; Ruth and Reitz, 2003). National political trendsincluding
those that implicitly and explicitly made crime policy about racemade the assault on
rehabilitation in California and elsewhere part of a larger struggle to advance neo-lib-
eral paternalistic governance (Soss et al., 2011) that freed capital, privatized govern-
mental services, undercut social welfare, and disciplined the poor (especially the urban
underclass) (e.g. Wacquant, 2009). These conditions likely made residents receptive to
claims about the limits of government policy (including penal policy), as Garland (2001)
argues. These macro-level forces provided the opening for early struggle over criminal
punishment to shift into full-scale warfare on the rehabilitative ideal.
Our focus on California and the Treatment Era is strategic in that we want to highlight
places and eras where scholars least expect to find struggle. However, it is also true that
struggle may be more pronounced in California given its populist, combative political
traditions and institutions (e.g. Barker, 2009; Page, 2011). Thus scholars should investi-
gate whether this perspective can be fruitfully applied to other statesand other time
periodsthroughout the build-up of the US penal state. Our prediction is that even in
states (and periods) in which struggle may be less dramatic, it nevertheless exists and has
major implications for the nature and trajectory of punishment. This same story of the
importance of actors in shaping penal struggle can likely help to explain punishment in
other countries and time periods as well, although the nature and strength of the divide
between Treatment and Custody may be a uniquely American story.
We can also look to Californias more recent history to document how in another
period of seeming consensus, we can spot a great deal of struggle. As penal policy
became increasingly harsh, actors from the center and left of the political spectrum
pushed for their vision of justice, continuing to struggle for rehabilitation (although

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330 Theoretical Criminology 19(3)

they increasingly used the language of evidence-based practices). Ex-prisoners,

prisoners rights lawyers, advocacy organizations, and scholars fought against man-
datory minimum laws like Three Strikes, unconstitutional prison conditions, and
collateral sanctions that harmed individuals, families, and communities (Dagan
and Teles, 2014; Gilmore, 2007; Greene and Mauer, 2010; Page, 2011). And the
press pushed against abuses and excessive spending in criminal punishment, calling
for changes in penal policy. Under court order now to decarcerate due to inadequa-
cies in medical and mental health care, the correctionalists in California appear to be
gaining ground again.
One such microcosm of the contemporary struggle over punishment in California is
apparent in the ongoing struggles of grassroots activists to highlight racial and gender
disparities, and, in some cases, to argue for prison abolition (e.g. Davis, 2003; Gilmore,
2007). Many of the key actors in these movements are women and/or people of color,
which makes sense given that these groups are both being imprisoned in record numbers,
and suffer acutely many of the collateral consequences of hyper-incarceration (e.g.
Bosworth and Kaufman, 2013; Heimer and Kruttschnitt, 2006; Western, 2006). This
grassroots activism has helped produce fissures in the penal field that are now resulting
in reforms (e.g. Sudbury, 2013). Specifically, groups continue to fight against prison
privatization and the rampant use of solitary confinement; they advocate for major
changes to sentencing practices; and argue for prison closures. Nonetheless these advo-
cacy groups face resistance from dominant actors in the field, including mainstream
liberals (e.g. Governor Jerry Brown) who prefer incremental to radical change. Thus it
remains to be seen whether, and if so, how, progressive actors will be able, in the coming
years, to seize upon contemporary shifts in the penal field in the Golden State to enact
changes for which they have been advocating for decades.
Penal change is the result of long-term struggles. The reform efforts now taking
place across the country, including realignment in California, are the result of strug-
gle throughout the punitive era. Just as law and order forces rose to power in the
wake of the civil rights era, progressive reform groups are gaining power today in the
current context of tight fiscal conditions and declining crime rates. And just as we
cannot understand the fall of the rehabilitative ideal without the history of Treatment
Era struggles, so too is the seemingly sudden break with the tough on crime status
quo intelligible only within the broader context of economic, political, and cultural
change.

Acknowledgements
We are grateful to Jennifer Carlson for providing insightful and trenchant comments on an earlier
version of this article, as well as attendees at the Law and Society Association meetings in 2012,
where an earlier draft of this work was presented. Letta Page provided skillful editing, and we
benefited from comments from three anonymous reviewers.

Funding
This research received no specific grant from any funding agency in the public, commercial, or
not-for-profit sectors.

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Goodman et al. 331

Notes
1. For a sampling of some of the more influential, see Garland (2001); Gottschalk (2006); Simon
(2007); Wacquant (2009); Whitman (2003); and Young (1999).
2. See, for example, Campbell and Schoenfeld (2013); Goodman (2012); Kruttschnitt and
Gartner (2005); Lynch (2009); Page (2011); and Phelps (2011).
3. We use these terms interchangeably herein. Although not identical, each highlights the diverse
and contradictory nature of penal practices and orientations.
4. For a recent exception, see Campbell and Schoenfeld (2013).
5. We are currently writing a book that offers a similar analysis, but expands it to a longer time-
frame and other US states. Such an analysis is not possible within the space restrictions of the
article.
6. As used here, the penal field refers to the social space in which agents (people, groups, and
organizations) struggle to determine penal policies and priorities (Page, 2011, 2012).
7. Similarly, after the fall of the Treatment Era, punishment continued to be variegated.
Assessment and classification centers often remained in place, prisons continued to employ
a (limited) number of treatment professionals, and staff and some prisoners continued to use
the rhetoric of rehabilitation (e.g. Goodman, 2012; Lynch, 2000; Phelps, 2011).
8. We use Custody and Treatment as umbrella terms for general orientations, with the
understanding that diversity existed within these ideal types.
9. Ironically, some of the most strident critics of rehabilitation were those prisoners who became
educated on the inside during the early years of the Treatment Era (Irwin, 1980).
10. Of course, even punitive-sounding changes to sentencing do not always, in all places, lead to
increases in incarceration rates (e.g. Bala et al., 2009). But it certainly did in California.
11. Other early advocates for law and order politics included State Senator George Deukmejian
(later California Attorney General and then Governor); influential prosecutor George
Nicholson (who would become executive director of the California District Attorneys
Association in 1978); Paul Gann and Howard Jarvis, leaders of the Citizens Committee
to Stop Crime, and organizers of a legendary anti-tax measure (Proposition 13); and State
Senators Ed Davis and Edwin Meese III (future US Attorney General) (McCoy, 1993: 2224).
12. The theoretical claim that institutional practice is embedded in contexts of struggle extends
theories positing that institutional cultures and practices are indigenous to carceral facilities
(Sykes, 1958) and/or imported into them (Irwin, 1970).

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Author biographies
Philip Goodman isan assistant professor of sociology at the University of Toronto(and affiliated
with the Centre for Criminology & Sociolegal Studies). Hisresearch focuses on prisons, punishment,
race, rehabilitation, and penal labor,and has been published (or is forthcoming) inSocial
Problems, AmericanJournal of Sociology, Working USA:The Journal of Labor and
Society,CanadianJournal of Law and Society, andLaw& Society Review. With Joshua Page and

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Goodman et al. 335

Michelle Phelps he is writing the bookBreakingthe Pendulum: The Long Struggleover Criminal
Justice, under contract with Oxford University Press.
Joshua Page is an associate professor of sociology and law at the University of Minnesota. He is
the author ofThe Toughest Beat: Politics, Punishment, and the Prison Officers Union in California.
Hismain research interests are crime, law, and punishment.
Michelle Phelps is an assistant professor of sociology at the University of Minnesota. Her work
focuses onthe punitive turn in the USA, and in particular, changes in imprisonment and probation
supervision. This research has appeared inLaw & Society Review, Law & Policy,and theJournal
of Criminal Justice.

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