The Struggle to Institutionalise Impermissibility

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Nicola Lacey

Judith Resnik’s magisterial and comprehensive survey of the history of punishment within prisons, and of the struggle to subject these practices to critical scrutiny, constitutional limits and progressive reform, inspires, first and foremost, humility in the face of a considerable scholarly achievement.  But, as Resnik herself would, I take it, both agree and indeed hope, it also inspires perplexity.  After so much effort, over three centuries, on the part of so many actors – ‘pioneering prisoners’ [1] as well as campaigning reformers, national and international organisations, courts and law-making bodies – how can it be that the persistent effort to build consensus around norms of impermissibility, and to institutionalise those norms, has had such limited success?  Notwithstanding the fact that reform efforts have increasingly taken place in a broad international context which affirms the values of equal respect and human dignity in punishment, the prison seems relatively impervious to decisive humanisation.  As Resnik argues, all too often it remains a place of ‘ruination’: a space in which the basics of human dignity and even of personal safety, let alone of civic status, are either absent or actively subverted by the conditions of imprisonment.  Moreover this holds true not only for authoritarian systems but also the avowedly liberal democracies which most loudly affirm their adherence to humane and civilised norms of governance.  And in this respect, the United States provides perhaps the most perplexing case of all. 

There is much debate about just how far the general trend towards greater public ‘punitiveness’ since the 1970s in many countries, and in the United States in particular, was caused by rising crime: what is beyond doubt, however, is that the intensified volume of law and order politics has not happened in a political vacuum; it has both fed and been shaped by public attitudes which render a reputation for leniency in punishment a political liability.[4]  Of course, robust criminal justice policy does not necessarily equate to Resnik’s ‘impermissible punishments’.  But wherever it flows from the demonisation of offenders as other, dangerous, undeserving, it surely makes them more likely.  This implies that what Robert Sampson has called the ‘characterological’ framework of much contemporary criminology and crime control policy is itself problematic.[5] 

Populist punitiveness and the resurgence of an implicit framing conception of crime as a product of bad character are therefore undoubtedly part of the problem in any effort to institutionalise norms of impermissibility.  For this depends on motivating a sense of baseline solidarity, or at least acknowledgment of an ongoing relationship as co-inhabitants of a society which – contrary to the impression created by the ‘lock them up and throw away the key’ tone of much public debate – almost all of them will re-enter, most of them sooner rather than later. This is just one of the many ways in which the interdependency between those within the outside the prison, which Resnik emphasises makes itself felt. 

So how might a polity foster the sort of attitudes which might underpin a more temperate debate about the social problems of crime and how to respond to it?  How can a system create barriers to opportunistic politicians who see adding fuel to the flames of a divisive and demonising debate about crime and punishment as a means to electoral success? 

In this respect, I continue to think that building a comparative perspective into our scholarship is a key resource.  This is not, pace Resnik,[6] a matter of ‘national character’; rather, it is an effort to grasp how distinctive institutional arrangements can foster (or undermine) the social and political capacities needed to institutionalise norms of impermissibility.[7]  These arrangements in my view include not only the interlocking institutional structures of the political system – party structure, the electoral system, the distribution of veto points, opportunities for participation; of the labour market and its production regime; and of the welfare state.  It also includes factors like the culture and regulatory framework of news media and the structure of the professional bureaucracy.  Unfortunately, these institutional features tend to interlock in ways which make the alluring prospect of comparison-inspired policy and institutional transplants fraught with difficulty.  But an understanding of how these aspects of political and economic structure shape the development of penal policy, not least by supporting or undermining the sense of collective interdependency, solidarity and belonging – or to put it in the terms favoured by economists and evolutionary psychologists, high expected associational value – is an important first step to working out what is  (and is not) possible in any particular context.  Crucially, at this dismal moment in history, it reminds us that uncontrolled impermissibility in punishment is contingent: things could be otherwise, as they have been in other times, and are in other places.  So even in the light of the record charted in Resnik’s impressive book, a comparative perspective gives a glimmer of hope. 

Nicola Lacey is School Professor of Law, Gender and Social Policy at LSE Law School; you can reach her on n.m.lacey@lse.ac.uk.