Defining Penal Change

When discussing penal change, scholars mean change in the way a society or jurisdiction (defined locally, nationally, or otherwise) treats its perceived and convicted criminals. Most concretely, penal change refers to patterned, widespread differences, or trends, emerging in the daily practice of punishment—those individual decisions that become visible when aggregated, such as decisions to arrest, convict, divert to probation, sentence to lengthy prison sentences, or early release from prison on parole. Important examples include mass supervision, prison overcrowding, and sentencing disparities.

Changes in penal trends, however, are actually the product of what I will label formal and informal penal changes.Footnote ³ Formal changes are legally authorized or official changes in a jurisdiction's available forms of punishment: the authorization of the first prisons, the abolition of capital punishment, the rise of a particular style of or approach to policing, the passage of particular sentencing laws. These changes are immediately visible on the penal landscape as changes to law on the books (whether literally in statute books, through case law, or on agency websites and manuals). Before they directly affect those individuals eligible for punishment, however, such changes must be implemented by those who directly control the punishment experience.

Informal changes include changes in the values, norms, biases, or beliefs about crime, criminals, and punishment, such as beliefs that crime is on the rise, criminals are inherently sinful and irredeemable, extant punishment is too severe, punishment should rehabilitate or incapacitate, punishment should be cheap or even profitable, or punishment should reinforce social (class, race, gender) hierarchies. These informal changes may manifest in media coverage, public opinion polls, or the organizational culture of criminal justice agencies (e.g., courts, police departments), but they only lead to penal trends by influencing the behavior of jurors, judges, prosecutors, police officers, parole board members, lawmakers, voters, and other decision makers.

Both formal and informal changes are important for understanding changes in penal trends, and scholars frequently examine both types of changes simultaneously. However, informal and formal penal change contribute to penal trends differently. Formal changes structure individual decisions by changing the range of options from which one can select; informal changes structure those decisions by providing guidance about which option one should select. For example, a judge must adhere to the law's range of sentencing options, but her own values and her county's socio-political context may encourage her to select one of the more severe options. Likewise, agency rules may require a parole officer to revoke parolees for dirty urine samples, but his own view of the rules, past experience, and sense of morality may lead him occasionally to ignore such infractions.

Thus, by distinguishing between informal and formal changes, we can better understand the exact causal pathway of changes in penal trends. This article is primarily concerned with formal penal change and its consequences.

Problematizing Theories of Formal Penal Change

Macro-level social theoretical explanations of punishment and penal trends have traditionally focused on formal changes, especially the emergence and decline of penal technologies. These technologies may include a new method or implement of punishment (e.g., incarceration, execution, community supervision) or a new subtype of an existing method (e.g., the supermax prison, the single-drug protocol for lethal injection, intensive supervision probation). Most famously, Durkheim (1893), Reference Rusche and KirchheimerRusche and Kirchheimer (1939), and Reference FoucaultFoucault (1977) viewed the rise of modern state prisons, roughly coterminous with capital and corporal punishments' decline, as a significant dividing line in the history of punishment. Indeed, the rise or fall of such penal technologies have usefully served as temporal boundaries demarcating penal eras.

A more fragmented version of this approach has continued with recent analyses of the rise of mass incarceration and the related penal complex that created and sustains it. Thus, scholars have examined the appearance of the warehouse prison (Reference IrwinIrwin 2005), the supermaximum security (supermax) prison (Reference ReiterReiter 2016), three strikes laws (Reference Karch and CravensKarch and Cravens 2014; Reference Zimring, Kamin and HawkinsZimring et al. 2001), sex offender laws (Reference LeonLeon 2011), and drug-testing policies for parolees and probationers (Reference Feeley and SimonFeeley and Simon 1992) as significant arrivals on the penal landscape. All of these new technologies have been adopted widely, seem to epitomize the punitive turn, and have either contributed to the growth in incarceration rates or qualitatively changed the experience of punishment; they are thus deemed important causes and examples of penal change.

As numerous scholars have noted, however, seemingly widespread formal changes may not be as significant as they appear. Reference Goodman, Page and PhelpsGoodman et al. (2017) have recently summarized three problems facing accounts about sudden, significant changes in punishment. First, such accounts overstate the homogeneity of any penal era. While penal trends may be apparent nationwide, certain states or regions may shun dominant trends or only adopt these trends reluctantly, creating substantial variation across time and place (Reference LynchLynch 2011). A growing number of historical case studies of individual states—Illinois (Reference JacobsJacobs 1977), Florida (Reference SchoenfeldSchoenfeld 2014), Pennsylvania (Reference RubinRubin 2013, Reference Rubin2020), Arizona (Reference LynchLynch 2010)—have rejected nationwide trends, often holding out until the trend had expired in most other states. Moreover, the politics of punishment that helped precipitate new sentencing laws vary by state, leading to differences in the levels of punitiveness and discretion embedded in such laws (Reference BarkerBarker 2009). For example, California's three strikes law is notoriously extreme relative to the versions of the law adopted by most other states, affecting far more people than in any other state (Reference Zimring, Kamin and HawkinsZimring et al. 2001). Traditional accounts overlook the spatial and temporal heterogeneity in otherwise national trends.

Second, these accounts misstate the level of support for apparently dominant penal trends; instead of reflecting a new consensus over the goals and methods of punishment, penal change is the result of conflicting and changing power dynamics that enable some groups to influence policy in ways they had not before (Reference Goodman, Page and PhelpsGoodman et al. 2017). Seemingly popular changes, even those voted in by an enthusiastic public, are often the result of a small but powerful minority. Penal policies of the last 40 years, for example, have largely reflected the values of suburban or rural voters rather than the large but less powerful contingent of urban voters (Reference MillerMiller 2008). Indeed, lobbyists and interest groups have been essential in facilitating penal change (Reference GottschalkGottschalk 2006). A 2004 voter initiative was poised to mitigate the most extreme features of California's notorious three strikes law until advertisements funded by the state's powerful prison guard union and victims' rights lobby reversed public opinion on the law (Reference PagePage 2011). Even among state actors, we find disagreements over penal policy within the ranks of the corrections staff (Reference Goodman, Page and PhelpsGoodman et al. 2017) and between correctional administrators, the governor, and the legislature (Reference Feeley and RubinFeeley and Rubin 2000; Reference LynchLynch 2010; Reference Rubin and PhelpsRubin and Phelps 2017; Reference SchoenfeldSchoenfeld 2011). Traditional accounts of penal change overlook this subdermal contention about ostensibly dominant policies and technologies.

Finally, these accounts overstate the reality of penal experience: in any given locale, large and important gaps frequently emerge between policy discourse and the implementation of official mandates. Much recent penal change has happened at the level of rhetoric, albeit enshrined in law, such as the rejection of a rehabilitative approach to punishment (Reference AllenAllen 1981) in favor of a risk-management approach (Reference Feeley and SimonFeeley and Simon 1992). However, actual spending on treatment programs and staff remained relatively robust for decades after penal rhetoric hardened (Reference PhelpsPhelps 2011) while frontline workers rejected the risk-management orientation of many new parole and probation policies in favor of investigatory approaches (Reference LynchLynch 1998). Across prison facilities, moreover, variation in the extent to which correctional personnel agree with the new ideology provides different experiences of punishment to prisoners within the same state (Reference Kruttschnitt and GartnerKruttschnitt and Gartner 2005). Traditional accounts overlook the significant gap between the reigning theory or official representation of punishment and on-the-ground practice.

For these reasons, Reference Goodman, Page and PhelpsGoodman et al. (2017) argue, apparently major shifts in penal policy, particularly those signaled by formal changes, are not only misleading, but manifest at the wrong level of analysis to reveal what causes penal change. These limitations suggest that current tools for discussing and analyzing penal change—by overstating geographical and temporal homogeneity, implying broader support, and focusing on externally visible changes—prevent us from fully understanding the dynamics of change. For Goodman et al., these limitations invalidate the previously dominant approach to describing the history of American penal change as a constant pendular movement between distinct periods of rehabilitative and punitive approaches to punishment demarcated by the arrival of new technologies (e.g., the prison, parole) and different types of technologies (the penitentiary, the factory-style prison, the plantation-style prison, the Big House, the correctional institution, and the warehouse prison) (e.g., Reference IrwinIrwin 2005). More than “breaking the pendulum [metaphor],” however, these limitations also cast doubt on the significance of new penal technologies, particularly as harbingers of new eras in punishment.

And yet, some scholars retain an almost instinctual commitment to the emergence of new technologies as significant indicators of change. Indeed, for Reference Garland, Blomberg and CohenGarland (2003: 64), the recent punitive turn does not signify a new, distinct penal era because there are no “new institutions and practices being legislated into existence,” only changes to penality's “objectives and orientation.” Ultimately, he argued, “Temporary and reversible conjunctural shifts must be distinguished from long-term structural transformations” (Reference Garland, Blomberg and CohenGarland 2003: 68, emphasis added). By this metric, modern penality, distinct from what came before, was forged in the decades around 1900, with the emergence of parole, probation, and other new penal technologies (Reference GarlandGarland 1985: 5). The heightened use of these technologies simply represents a later stage of the same era—“high” or “late” modernity—rather than the beginning of a new era—“post modernity” (Reference Garland, Blomberg and CohenGarland 2003: 61). While this approach provides a conservative definition of change (e.g., overlooking new versions of older technologies), it conveys the lasting centrality of new penal technologies in analyses of penal change. However, in light of recent findings, scholars' commitment to penal technologies as significant phenomena—especially markers of penal change—needs to be defended.

In the remainder of this article, I propose a theory of formal penal change that rebuilds the significance of penal technologies. Specifically, the theory keeps penal technologies at the center of analyses while overcoming the three limitations associated with accounts that assume the significance of penal technologies' rise and fall. I begin with the assumption, drawing on Goodman et al. and contra traditional accounts, that when new penal technologies emerge, they do not reflect widespread beliefs about crime and punishment; rather, they reflect beliefs popular among or promoted by some locally specific, influential group (e.g., social elites). Consequently, rather than exploring the causes of technologies' innovation, I emphasize the stages after innovation, focusing on the process by which a given technology becomes dominant.

In the next section, I shift our focus from penal technologies to legal templates. Building on core insights from neo-institutional theory and law and society, I emphasize that, when adopted for symbolic purposes, legal templates are not faithfully applied in practice as intended by their innovators, but are used by local authorities in unanticipated ways. Therefore, in the subsequent section, I demonstrate how legal templates' diffusion determines their significance irrespective of their anticipated impact on actual practice. Next, I lay out three main parts of the legal templates theory. Although I use diverse examples throughout to illustrate the theory's broad applicability, in the penultimate section, I systematically apply the theory to two overlapping periods of penal change. This legal templates theory provides a more precise, alternative understanding of penal change and penal practice following the emergence of new penal technologies that rise to prominence.

Definition

Legal templates of punishment are idealized, replicable models that specify, in varying degrees of detail, punishment's structure—what punishment should look like, of what activities it would consist, who is involved, where it takes place, or how long it lasts. As descriptions or models that can be legally authorized or formally adopted, templates' authorization often appear in statutes and court cases, but their histories need not begin there: reformers or penal administrators may first create a template in their writings or routines that only later receives formal authorization.

Importantly, templates are not justifications of punishment, and they are conceptually distinct from logics, or the “organizing principles” that motivate action (Reference Friedland, Alford, Powell and DiMaggioFriedland and Alford 1991: 248). Penal logics, whether traditional (e.g., rehabilitation, deterrence) or new (e.g., harm reduction, risk management), identify a particular goal for punishment and provide a general account of how punishment will achieve that goal. By contrast, legal templates describe the particular forms punishment will take, whatever the underlying logic. Indeed, templates can simultaneously be justified by multiple logics and their justifying logics may change over time.

Instead, legal templates can be understood as the “formal structures” of punishment. Formal structures are “a blueprint for activity” with “elements [that] are linked by explicit goals and policies that make up a rational theory of how, and to what end, activities are to be fitted together” (Reference Meyer and RowanMeyer and Rowan 1977: 342). As formal structures, legal templates of punishment are the official account or representation of the work to be done by those who mete out punishment; they “often serve only as a decorative facade concealing the ‘real’ agenda and structure” (Reference ScottScott 2003: 28). I use the label “template,” rather than formal structures, to highlight two characteristics: First, as models, templates are available to be borrowed, copied, and authorized by multiple jurisdictions. Second, where a template has been authorized or adopted, its relationship to actual practice will vary across time and place. More than a definition, the templates concept is used to invoke a particular analytical approach, developed more below, that is flexible enough to describe a range of penal phenomena, much of which has previously been referred to as “penal technologies.”

In many contexts, the term legal templates can replace the terms “penal technologies” or “penal techniques” (albeit stripped of their Foucaultian undertones). These terms are not standardized in the literature: “technology” is sometimes used interchangeably with “technique” and “institution,” each of which means different things to different scholars, thus rendering the terminology confusing and less useful. This article offers a clearly defined alternative vocabulary. Importantly, the term “template” has an advantage over “technologies” and “techniques”: when scholars describe the adoption of a penal technology, they may be speaking about either the model (or description) of punishment or its actual use. The term “template” emphasizes the model and not its actual use.

Different modes of punishment and social control—execution, incarceration, community supervision, fines, policing, and so forth—each have their own sets of templates. Executions, for example, have been guided by different templates in different times and places across American history: hanging, firing squad, electric chair, gas chamber, and lethal injection. Some templates can be subdivided into distinct versions: The hanging template includes both strangulation-style hangings and drop-style hangings; likewise, the lethal injection template includes both a three-drug protocol and a single-drug protocol. I call these different styles or protocols “versions” because they are substantially similar forms of the same execution method or template; by contrast, the electric chair and gas chamber are templates as they are substantially different methods of execution. A jurisdiction is unlikely to rely on different versions of the same template simultaneously (e.g., states rarely authorize both single- and triple-drug protocols for lethal injection); but a jurisdiction may rely on multiple templates for a single mode of punishment (e.g., many states authorize both lethal injection and some other template for execution such as hanging, firing squad, electrocution) (see Reference BannerBanner 2002; Reference GarlandGarland 2010). Considering that each jurisdiction frequently employs multiple modes of punishment simultaneously (from execution to community supervision), each jurisdiction will often have multiple templates at any time. Table 1 offers a selected list of the various templates that have characterized execution, incarceration, and community supervision throughout American history.

Table 1. Legal Templates of Punishment from American History. Select versions of various templates are included as illustrations.

While legal templates have permeated penal systems throughout history, the most readily identifiable templates are typically the most popular, widely adopted templates. Many of these templates, because of their widespread adoption, became iconic representations of punishment and have received disproportionate scholarly attention.Footnote ⁴ Such popularity, however, is not definitional to the template; execution via firing squad was never widely adopted, but it is a template nonetheless as it offers a more or less specific vision of execution that can therefore be authorized. However, as the rest of this article will explain, only those templates that are copied can achieve long-term significance.

Templates on the Ground

Definitionally, actual practice—punishment as meted out “on the ground”— is distinct from the template that guides it. Templates are idealized models—putative descriptions of, or prescriptions for, punishment; consequently, templates often diverge from their on-the-ground implementation. Consequently, even our most distinctive templates show much greater variation in practice than their categorical descriptions suggest. To take one template as an example, the supermax prison is often defined as a facility containing a prison system's most dangerous prisoners in solitary confinement in conditions of sensory-deprivation for 23 or more hours a day. In practice, however, it is difficult to create an inventory of the nation's supermaxes because of their different names and varied internal practices (Reference ReiterReiter 2012a). Moreover, some states relying on recognizable and even prototypical supermaxes double-cell their prisoners, apparently violating the very essence of the supermax (solitary confinement) and the rationale for prisoners' confinement (prisoners considered too dangerous to be around other prisoners are confined together) (Reference ReiterReiter 2012b). In this and other cases, the template's description bears a tenuous connection to reality.

Legal templates are not, however, wholly irrelevant to the daily practice of punishment. Even when implemented imperfectly, templates can significantly impact accused and convicted criminals' lives. Indeed, nationwide, thousands of supermax prisoners spend months, years, or decades in solitary confinement (Reference ReiterReiter 2016). However, legal templates' effect on actual practice frequently differs significantly from their creators or promoters' expectations, whether progressive or repressive (see Reference CohenCohen 1979). For example, correctional administrators in the 1980s designed supermax prisons for the “worst of the worst”; in practice, correctional officers use their extensive discretion to send myriad prisoners to supermax confinement even for minor rule violations (Reference ReiterReiter 2012c: 543; Reference ReiterReiter 2016). Moreover, supermax prisons were supposed to be used on a select number of prisoners for short periods preceding a step-down period whereby prisoners would gradually reacclimatize to human contact. Instead, supermaxes contain so many prisoners for such long periods that the facilities have become overcrowded, while subsequent administrators never implemented a step-down period (Reference ReiterReiter 2012c: 540). Thus, legal templates do affect actual practice, but their impact is often partial, unanticipated, or marginal to the template's design.

It is this divergence between practice and description that has most called into question the significance of penal change associated with (what I am calling) legal templates. The primary challenge, then, becomes identifying the significance of the legal template divorced from its immediate impact on punishment in practice. As we shall see, this reframing improves our understanding of penal change by changing how we think about, envision, and describe formal penal change.

Focusing on Templates' Diffusion

Legal templates adopted by a single jurisdiction alone are insignificant in macro-level analyses of penal change. Rather, to be significant as a social phenomenon at this level, a template must be replicated on a large scale: it must be adopted widely, across some discrete set of jurisdictions, such as the American South, the European Union, or the Global South.Footnote ⁵ Indeed, scholars pay little attention to the handful of American states that retain the firing squad or hanging as optional methods of execution along with the more common lethal injection because minor trends are not as analytically intriguing as major trends. Likewise, Arizona and other sunbelt states were outliers or laggards for much of the twentieth century for their regionally distinctive “sunbelt justice” model of tough and cheap punishment. They were not penologically significant states until the sunbelt, and Arizona in particular, became the bellwether for late-twentieth-century American punishment, developing multiple templates adopted around the country.Footnote ⁶ It is, I argue, this widespread adoption, or diffusion, that signals major penal change.

To date, penal scholars have neglected diffusion in favor of innovation; but focusing on the “moment” of innovation has distorted our understanding of penal change (Reference RubinRubin 2015). Scholars of American prison history, for example, explicitly or implicitly assume a somewhat staccato vision of penal change that generalizes from influential, innovative states. Prison history is typically divided into discrete periods (usually two or three decades) associated with the rise of a type of prison and related technologies (see the lower portion of Figure 1) (e.g., Reference IrwinIrwin 2005). This approach has been used on a larger timescale (sometimes centuries instead of decades) at the international level (e.g., Reference Simon, Simon and SparksSimon 2013).Footnote ⁷ Thus far, it has been a useful heuristic device for clarifying apparently significant changes across large swaths of time and space. However, following the recent literature, it may be time for an alternative approach.

Figure 1. Comparing the traditional and legal templates approaches to prison history, 1790s to 1930s. The arcs above the line represent the diffusion of particular legal templates over time. An arc's height and width represent the number of jurisdictions that adopted the template: the beginning and end of an arc (width) represent the first and last adoptions of the template while the highest point of the arc roughly corresponds to the time that the template has been adopted by most of the jurisdictions that will adopt it. The overlap across arcs illustrates the degree to which the end of one template's diffusion overlaps with the beginning of another, or the degree to which multiple templates diffuse at different but overlapping times. The dotted lines below represent the traditional breaks in history implied by traditional narratives. The image is intended to be illustrative; heights, widths, and overlap are approximations.

A diffusion-based account of prison history provides a more accurate depiction, one that is not easily represented linearly or tabularly. For illustrative purposes, Figure 1 offers a visual representation of developments from the late 1780s to the 1930s. (Although the figure uses approximations, I present data for two periods in the penultimate section.) The lower portion depicts a traditional visual representation of this period, wherein history is periodized into neat, self-contained periods associated with the dominant legal templates. The upper portion depicts a more empirically accurate representation of the same timeline: here, history is viewed as a series of different-sized, overlapping arcs associated with the dominant legal templates' adoption across different jurisdictions. By emphasizing templates' overlapping diffusion, this visual representation avoids traditional periodizations bookended by new templates' innovation.

While continuing to understand the process of innovation is essential, examining diffusion is important for at least three reasons. First, it immediately builds process into our analysis, which expands discussions of time from a moment (of innovation) to a duration (of diffusion). No longer a series of binary variables, time becomes a continuous variable. Rather than staccato periods, we see a series of diffusion curves, where diffusion curves are simply cumulative counts of a template's adoption (see Figure 2). Second, recognizing that diffusion is incomplete for a large portion of the period associated with a template challenges descriptions of history that imply periods of homogenous punishment once a new technology was immediately and uniformly adopted. Finally, examining diffusion complicates existing narratives about why jurisdictions adopt legal templates, even revealing different motivations driving adoption at different times within a single period.

Figure 2. A new view of penal change: hypothetical diffusion curves for three legal templates. This figure is for illustrative purposes: Templates A, B, and C could be, for example, proto-prisons, modern prisons, and adult reformatories, respectively; drop-style hangings, electrocution, and lethal injection, respectively; or individual law offices, the Cravath style law firm, or mega law firms, respectively. The overlap of the diffusion curves for Templates A and B illustrates how some templates begin to diffuse while previous templates are still diffusing, but their rate of diffusion is slowing. By contrast, Template C's diffusion curve begins once Template B's ends. In an empirical example, the height and width of each diffusion curve would vary depending on the duration of the diffusion and how widely the template is adopted. The categories of innovators, early adopters, late adopters, and laggards are borrowed from Reference RogersRogers (2003). The dashed line represents an approximate point in the diffusion curve at which each template institutionalizes.

Legal Templates' Early and Late Adopters: Excavating the Diverse Reasons for Penal Change

Legal templates develop in jurisdictions that experience a particular change in circumstances that poses new challenges or (perceived) problems (e.g., apparent crime wave, increased immigration, changing political alliances, new race relations, tighter labor market, etc.).Footnote ⁹ Even though several jurisdictions may experience the new challenge around the same time, only a few innovative jurisdictions will have the resources or will to create a legal template to address the challenge.Footnote ¹⁰ Other jurisdictions facing a similar challenge, but perhaps without the resources or will to innovate, are likely to adopt one of the newly available templates, rather than creating their own solutions, to address their (similar) challenges. For these innovative and early adopting jurisdictions, then, the template solves a practical problem; adoption is a technically rational decision (Reference ScottScott 2003: 33).Footnote ¹¹

As more jurisdictions adopt the new legal template, it becomes institutionalized—taken for granted or widely accepted, perhaps even as the primary form of punishment (for a particular type of offender or crime).Footnote ¹² Even though these jurisdictions may only imperfectly implement the template, their formal adoption conveys their approval of the template; increasingly, as more jurisdictions adopt the template, the template is understood to be consistent with society's norms and values (Reference Berger and LuckmannBerger and Luckmann 1967; Reference ScottScott 1995: 59). Over time, it becomes the expected approach to punishment. Indeed, as a template becomes institutionalized, debate surrounding the template is likely to subside and the rate of adoption to increase (before eventually plateauing) (Reference Tolbert and ZuckerTolbert and Zucker 1983: 23–24).Footnote ¹³

The template's institutionalization can drive hold-out jurisdictions to adopt the template, thereby becoming late adopters or (for the last in line) laggards.Footnote ¹⁴ These jurisdictions may not have experienced the same change in circumstances as the innovative and early adopter jurisdictions and thus have no technical need for the template. However, once the template is institutionalized, these hold-out jurisdictions begin to experience tremendous pressure to adopt it—what is now the expected form of punishment—or face challenges to their legitimacy (Reference Tolbert and ZuckerTolbert and Zucker 1983: 26). For example, a police department in a town with no apparent gang problem will face, and accede to, community pressure to adopt a specialized gang unit (Reference KatzKatz 2001). Likewise, school districts with no drug problem will institute drug testing when drugs are considered a national problem; those districts that abstain become vulnerable to criticism that they are not doing their job to protect school children (Reference SimonSimon 2007, chapter 7). Late-adopting jurisdictions thus adopt the template to strengthen or protect their own legitimacy, rather than for reasons of technical rationality or efficiency (Reference Meyer and RowanMeyer and Rowan 1977).

Legal Templates as Symbolic Structures: Revisiting the Limited Impact of Penal Change

In the end, many jurisdictions will have adopted the institutionalized template not because it is the superior response to some technical problem (whatever drove early adopters), but because it covers the jurisdiction in a mantle of legitimacy and provides conformity with expectations about what punishment should look like. However, such jurisdictions also have their own technical goals, which may or may not be stated openly, such as reducing crime, controlling visible disorder, or maintaining class- or race-based hierarchies. Importantly, institutionalized templates are not necessarily the most efficient means of achieving these technical goals. Consequently, a jurisdiction that adopts a template primarily for legitimacy reasons is likely to find the template a poor fit with local technical goals (Reference Meyer and RowanMeyer and Rowan 1977).

These legitimacy-motivated jurisdictions must retain the template and pursue their technical goals. Importantly, templates' legitimizing power exists at the level of the visible—formal adoption: jurisdictions can satisfy their legitimacy needs by authorizing a template even if, privately, the template has little impact on actual practice. Indeed, jurisdictions will find ways to ensure the new template does not interfere with the ongoing pursuit of their technical goals. Specifically, they will “maintain gaps between their formal structures and their ongoing work activities” to pursue particular technical goals (Reference Meyer and RowanMeyer and Rowan 1977: 341). This gap between theory and practice—between the visible adoption of legal templates and the invisible meting out of punishment—allows local actors, privately, to ignore the legal template or to adapt it to their own local needs or preferred ways of doing punishment (Reference Meyer and RowanMeyer and Rowan 1977).Footnote ¹⁵

For example, COMPSTAT, an approach to policing using statistics and computer software to guide decisions about allocating manpower and managing workloads, was created to address the specific crime problems unique to New York City. Deemed a success, it was adopted in other cities, including Lowell, Minneapolis, and Newark, each of which had different (and declining) crime challenges to which COMPSTAT was not well suited. Adopting a new protocol developed by the prestigious NYPD, however, imbued these other police departments with legitimacy. When COMPSTAT proved more cumbersome than helpful, these police departments largely reverted to their old routines and workloads while maintaining their visible commitment to COMPSTAT (Reference Willis, Mastrofski and WeisburdWillis et al. 2007).

Jurisdictions may also alter the template behind the scenes and use it to their advantage. For example, a prison may adopt an inmate grievance procedure to satisfy juristic expectations and derive legitimacy from conforming to expectations about what constitutes fair treatment of prisoners. However, the procedure may be largely symbolic, rarely requiring changes to prisoners' treatment. Once in place, the template may be “co-opted” and used in ways unintended by the court rulings that initially mandated them, as when inmate grievance procedures are used to “cool out” frustrated prisoners or better surveil the prisoner population rather than address rights violations (Reference Bordt and MushenoBordt and Musheno 1988; Reference Calavita and JennessCalavita and Jenness 2015). So long as the template's imperfect implementation remains invisible, the jurisdiction's claim to employ the template continues to provide the jurisdiction with legitimacy.

Legal Template's Constitutive Power: Recognizing the Long-Term Consequences of Formal Penal Change

Despite its adulteration in practice, the institutionalized template remains powerful. Once a template becomes institutionalized, it becomes part of a society's expectations about what punishment is or looks like. Underlying the template's institutionalization is a general sense of acceptance or approval. This acceptance may have moral (it is proper) and pragmatic (it is best) dimensions, but importantly, it also has a cognitive-cultural dimension (it is how we do things) (Reference ScottScott 1995; Reference SuchmanSuchman 1995). The template's growing acceptability or seemingly natural, primeval status starts to construct social understandings of punishment. Over time, these cognitive-cultural expectations become “prescriptive”—they shape new norms about what current and future punishments should look like, be like, or do (see Reference ScottScott 1995: 35). Put differently, an institutionalized legal template becomes a “common frame of reference” when actors think of punishment (Reference ScottScott 1995: 45). The template becomes the recognized substance of “the way we [punish]”; punishing differently becomes “inconceivable” (Reference ScottScott 1995: 57). In this sense, legal templates become normative. I refer to this dynamic as legal templates' constitutive power (Reference Ewick and SilbeyEwick and Silbey 1998; Reference GordonGordon 1984; Reference Hirsch, Lazarus-Black, Lazarus-Black and HirschHirsch and Lazarus-Black 1994; Reference Starr and CollierStarr and Collier 1989).

This constitutive power has significant consequences for penal stasis and change. First, even if a legal template is ushered in by social elites whose views are not representative, as often occurs (Reference Goodman, Page and PhelpsGoodman et al. 2017), it can gain popular support by becoming institutionalized. Two extreme examples illustrate the point. The prisons emerging in the late eighteenth century received substantial opposition from prisoners, their family members, and even prison staff (Reference IgnatieffIgnatieff 1978; Reference McLennanMcLennan 2008). Within 50 years, however, prisons were fully secure in the penal landscape—debates focused on the internal designs and routines of prisons, but there were no serious discussions about abolition. Today, while there are some abolitionists, most American citizens cannot imagine a criminal justice system that does not rely on the prison despite widespread agreement that the prison system needs substantial change (e.g., Reference GottschalkGottschalk 2014). Likewise, France abolished its death penalty in 1981 by political mandate and against significant public opposition. Today, however, most French people oppose the death penalty and its return (Reference ZimringZimring 2006). The causal process by which public opinion changes is complicated and mediated by many factors, but I suggest that institutionalization contributes to this change: once a legal template is widely adopted (especially at the behest of social and political elites), it conveys perceptions of legitimate penal behavior that likely shape some significant part of public opinion about that punishment.Footnote ¹⁶

Second, institutionalized legal templates provide the contours of future punishments. Once a template is institutionalized, reformers, legislators, penal administrators, or interest groups are free to tinker with or elaborate the template (Reference Grattet, Jenness and CurryGrattet et al. 1998). So long as they retain the underlying template in some recognizable form, jurisdictions can customize the template for their particular (local) needs and retain their legitimacy. For example, once early statutes penalizing hate crimes had institutionalized the general template of hate crime statutes (e.g., establishing the category of hate crime), later versions of these statutes could include a greater range of crimes and categories of protected persons. This sort of open “differentiation” is only possible once the original template is institutionalized (Reference Grattet, Jenness and CurryGrattet et al. 1998: 303).Footnote ¹⁷ The initial template becomes so well ensconced in the penal landscape that, even when the template seems a poor fit for the challenges at hand, jurisdictions create new versions of the template rather than seeking altogether different templates.

Legal templates' constitutive power determines their larger significance by causing lasting change. Indeed, templates' constitutive power may explain why, “[o]nce in place, the infrastructure of penality attains a certain resilience and inertia, and major changes in that apparatus tend to occur slowly and against a great deal of resistance,” even when goals and actual practice change more quickly (Reference Garland, Blomberg and CohenGarland 2003: 64).

Proto-Prisons, 1785–1822

Modern Prisons, 1816–1870s+

Overlapping and Varied Diffusion

Out of the ashes of proto-prison arsons and riots, modern prisons emerged as the next dominant template. Whereas proto-prisons' daily routines were less structured and provided prisoners a fair amount of freedom and socialization, the new modern prisons sought to expand prison managers' control through tighter schedules and stricter segregation, whether social (silence) or physical (solitary). Notably, the first modern prisons opened at the tail end of the proto-prison's diffusion, while frontier states and established but laggard states were still authorizing their first proto-prisons (see Figure 3). Instead, the new wave of reform was again driven by states with emergent technical needs: Pennsylvania and New York housed some of the largest prison populations in the oldest facilities, which suffered the most extensive and frequent disorder in the 1810s. Both states authorized larger, stronger, more tightly controlled facilities in separate parts of their states (upstate New York in 1816 and western Pennsylvania in 1818). Initially, these new prisons were not understood as new templates or challengers to the proto-prison. Instead, the new facilities were modeled on the old template, but their larger size and rural location were expected to alleviate the overcrowding in the states' aging proto-prisons and reduce the expense of transporting prisoners from more rural parts of each state. As the existing proto-prisons deteriorated, however, these states revised their plans for the prisons under construction to address these problems, creating new templates in the process—the first modern prisons (Reference RubinRubin 2020).

Figure 3. The diffusion of proto-prisons and modern prisons in America, 1785–1865. The vertical lines indicate the traditional period breaks. For consistency across periods, I have used date of opening, rather than the authorization date. Additional modern prisons adopted after 1865 are not shown. Source: Rubin (2015, 2016, ND). [Color figure can be viewed at wileyonlinelibrary.com]

Limitations and Future Research

Although the legal templates theory provides a powerful tool kit for understanding penal change, it has two major limitations. First, unlike prior accounts of penal change, this theory takes no stand on the underlying cause, the spark that initiates change. This theory refers to technical-rational needs—meaning a jurisdiction's actual goals, whether crime control, race/class control, or some other desired end—but not where these needs come from. Technical-rational needs may appear for many reasons—new ideas about crime and criminals, significant overcrowding, the abolition of slavery, the (perceived) failure of Keynesian economics, a dramatic increase in immigration, court decisions ruling prior practices unconstitutional—that will be specific to the time and place. The templates theory thus makes no general statements about the arrival of new technical-rational needs; consequently, it works best in combination with other accounts that do address the underlying causes or sparks of penal change, such as Reference Goodman, Page and PhelpsGoodman et al.'s (2017) agonistic perspective.

The agonistic perspective argues that macro-level shifts in society alter the relative power and influence of different groups, which are then better (or less) able to impose changes that reflect their particular penal agenda. We can also anticipate that macro-level shifts create new technical-rational needs; new or existing groups may propose adopting a particular template to resolve these needs. The groups' influence may help the template spread to other early adopter jurisdictions. For example, the group may circulate myths about the template's utility, which help construct the template as a beneficial policy or practice to adopt, imposing greater pressure on those jurisdictions that fail to adopt it (Reference DiMaggio and PowellDiMaggio and Powell 1983; Reference RubinRubin 2015). Finally, the template's growing institutionalization may help explain its adoption in those jurisdictions where ascendant groups are not influential.

Second, this theory applies only to formal penal change—especially the authorization (or abolition) of particular legal templates—and its consequences. Although this theory incorporates the gap between expectations and practice, it emphasizes punishment's structures rather than trends in their usage. Indeed, while this theory allows for frontline workers and other discretionary agents (e.g., police, parole officers, judges, juries), it does not discuss the informal (or cultural) bases of their decisionmaking, such as individual factors like racism, religion, or socioeconomic status or larger contextual factors. To understand actual practices, such as sentencing decisions or overall incarceration rates, we must turn to multilevel analyses that incorporate both new templates and local actors' use of them (Reference Campbell, Vogel and WilliamsCampbell et al. 2015; Reference Campbell and SchoenfeldCampbell and Schoenfeld 2013).

The templates theory extends beyond punishment to its parent institution, the law. In the criminal law, we can analyze penal codes, the distinction between first- and second-degree murder, repeat-offender laws, namesake laws, sentencing guidelines, and crime victims' bills of rights as templates. More broadly, some of the most significant legal phenomena—jury trials (Reference HansHans 2017), alternative dispute resolution (Reference Edelman and SuchmanEdelman and Suchman 1999), EEO/AA policies (Reference EdelmanEdelman 1992), problem-solving courts (Reference MirchandaniMirchandani 2005), constitutions (Reference Law and VersteegLaw and Versteeg 2011), the Cravath model for law firms (Reference NelsonNelson 1981), and mega law firms (Reference Liu and WuLiu and Wu 2016)—are themselves templates that diffuse, institutionalize, and shape conceptions of the law, its institutions, and its practices, even while functioning differently than anticipated in practice. Indeed, thinking of legal templates—like alternative dispute resolution or EEO/AA policies—as formal structures loosely coupled to actual practice and recognizing their constitutive power is already well established within law and organizations studies (Reference EdelmanEdelman 1992, Reference Edelman2016). Under legal endogeneity theory, “the meaning of law is shaped by widely accepted ideas within the social arena that law seeks to regulate,” thereby blunting the law's intended effect (Reference EdelmanEdelman 2016: 12). Under the legal templates theory, however, the templates themselves begin to shape wider social expectations about the law, constraining future efforts to change even after the templates have failed. Moving forward, the insights of these two theories can be combined and extended to examine other legal templates.