GAZETTE OF MORALITY AND

SOCIAL WHIP: PUNISHMENT,

HEGEMONY AND THE CASE OF
THE USA, I970-92
DARIO MELOSSI

University of California at Davis

N SEVERAL national legal systems, imprisonment rates appear to be

statistically associated over time with indicators of economic change, and yet
this association is not mediated, as one might expect, by change in crime
rates. In order to solve this riddle, I argue that rates of punishment vary with
power elites’ perception of, and responses to, critical periods, without respect to
changing official crime rates. A change in the level of punishment is brought
about through a particular linkage between social structural change - expressed
in part by economic indicators - and change in what I have called ’vocabularies of
punitive motive’ (Mills, 1963; Melossi, 1985a, 1990: 140-54).
I also intend to show that this view is consistent with a revised reading of
Georg Rusche’s emphasis on the concept of ’less eligibility’, according to which
the modalities and conditions of punishment are dependent on the social
structure and particularly on the labor market (Rusche, 1933; Rusche and
Kirchheimer, 1968; Melossi, 1978,1980). I will then focus on the possible reasons
why we can find such an apparently providential consistency of results between
the deeds of the criminal and penal justice systems and the presumed wishes of
the members of the power elite. In order to do so I will have to go beyond
Rusche’s economism, and rely instead on a theory emphasizing hegemony and
its articulation through vocabularies of punitive motive.
We will see how this revised reading of Rusche’s theory should be able to

Social LEGAL STUDIES (SAGE, London, Newbury Park and New Delhi),
Vol. 2 (1993),259
259-279

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account also for a socio-historical situation, the Reagan-Bush ’prosperity years’,

that is often considered as an exception to the explanatory power of the research
literature based on Rusche’s contributions. Finally, I will offer recent American
public discourse on crime and punishment as an instantiation of vocabularies of
punitive motive, as well as of their changing nature.

RESEARCH ON PUNISHMENT AND SOCIAL STRUCTURE

A host of researchers have traditionally interpreted Rusche’s argument by

linking quantitative longitudinal data on imprisonment,’ the criminal justice
system and crime, to an economic indicator, usually unemployment. In one of
the first studies, Ivan Jankovic used US federal and state prison statistics for the
period 1926-74 and found that, with two exceptions (the years of the Great
Depression, and federal prison data prior to 1960), ’the relationship between
unemployment and imprisonment was positive and statistically significant,
regardless of the volume of criminal activity’ (1977: 101). Matthew Yaeger (1979)
reached a similar conclusion from an analysis of US data from 1952 to 1974.
Harvey Brenner stated that ’a one percent increase in the unemployment rate
sustained over a period of six years’, in the United States from 1935 to 1973, was
associated ’with an increase of approximately ... 3,340 prison admissions’
(Brenner, 1976: 5-6). James Inverarity and Daniel McCarthy (1988) found that
state prison admissions in the United States from 1948 to 1984 were positively
and directly associated with the level of unemployment, after having controlled
for crime rates. More recently, Franklin E. Zimring and Gordon Hawkins found
that, between 1949 and 1988, ’the correlation between unemployment rate and
rate of imprisonment is .59’, but that ’[t]he correlation between change in

unemployment rate and change in imprisonment rate is only .21’ (Zimring and
Hawkins, 1991: 134; my emphasis).2
Outside the United States, David Greenberg (1977) found a strong correlation
between prison admissions and unemployment rate in Canada, from 1945 to
1959.~ Analysing time-series data for England and Wales for the period 1952-81,
Steve Box and Chris Hale concluded that ’the total population under immediate
sentence of imprisonment was sensitive to the level of unemployment even after

controlling for crime levels and conviction rates’ (Box and Hale, 1985: 218). In
Switzerland, from 1890 to 1941, Martin Killias and Christian Grandjean (1986)
found an association between unemployment and the rate of convictions, and
between unemployment and the number of those awaiting trial, but were unable
to control for crime rates. In my analysis of Italian data for the period between
1896 and 1965, I was able to find a direct association between change in the
business cycle and admission rates but not convictions, after having controlled
for the crime rate (Melossi, 1985a)/ In the case of France, Bernard Laffargue and
Thierry Godefroy, who analysed data from 1920 to 1985, found that unemploy-
ment was associated with imprisonment after having controlled for crime

(Laffargue and Godefroy, 1989; Godefroy and Laffargue, 1991).

Finally, in a recent paper, Theodore Chiricos and Miriam DeLone have

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surveyed the findings from forty-four empirical studies of the relationship

between labor surplus and imprisonment, mostly within the United States,
reaching the conclusion that ’evidence suggests that independent of the effects of
crime, labor surplus is consistently and significantly related to prison population,
and to prison admissions when time-series and individual level data are used
(Chiricos and DeLone, 1992: 421).
Therefore, in very different legal systems, imprisonment rates are associated
with economic indicators in a manner which is independent of the official crime
rate. Furthermore, the association between change in the given economic
indicator and in the imprisonment rate indicator is generally not lagged but
simultaneous (Chiricos and DeLone, 1992; Melossi 1989: 323-4). Given the
rather substantial amount of time that has to pass in every legal system between
the commission of a crime and imprisonment after sentencing for that crime, it is
obvious that the simultaneity of the relation is further confirmation of the fact
that what we have to explain is not the association between changing economic
indicators and criminals’ behavior, but is instead the association between
changing economic indicators and the behavior of penal control agencies.
Certainly, the statistical association of economic change with rates of
imprisonment is generally limited to a small part of the latter’s variance.
Therefore, other variables, like those of a bureaucratic and demographic nature
suggested by Berk et al. (1983) and Blumstein et al. (1980), should also be
investigated. Yet, similar findings, obtained in extremely different criminal
justice systems and social structures, cannot be discounted as mere statistical
aberrations. They suggest a pattern, according to which criminal justice systems
routinely handle cases with ’an eye’ toward a type of social process that is usually
’picked up’ by economic indicators. Once the ‘caseload’ explanation according to
which an increase in punishment would result from an increase in the amount of
crime (Greenberg, 1977) had to be shelved, the question that arose was: How
does such a relationship between (indicators of) punishment and (indicators of)
the economy actually come about?
.
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, I :

HEGEMONY, LESS ELIGIBILITY AND DEMAND OF SOCIAL PERFORMANCE

In sum, what we have to explain is not the relationship between changing

economic indicators and criminals’ behavior but, rather, the relationship
between changing economic indicators and criminalizing and punishing be-
havior. The central theoretical notion that should be mobilized to understand
these findings is the notion of ’hegemony’. Developing Gramsci’s classic
statements (Gramsci, 1971), I mean by hegemony the cultural dominance of an

overarching ’view of the world’, upheld by most members of a given society in

order to organize their relations at a given point in time (for instance, the
’Protestant Ethic’ during the transitional period from the breakdown of the
medieval social structure to the rise of capitalism, as in Weber’s classic account
[1958]). What I have called vocabularies of punitive motive, are articulations of

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these Weltanschaungen, as far as the activity of inflicting legal punishments is

concerned (Mills, 1963; Melossi, 1990: 140-54).
More specifically, I argue that those ’authorized’ to identify and label social
problems (Gusfield, 1981 ; Spector and Kitsuse, 1977; Becker, 1963), whom I will
call ’moral elites’, tend to act upon situations perceived as critical for the
maintenance of the political, socio-economic and cultural settings which they
identify with the defense and further promotion of their own hegemony. What is
important is not a purportedly ’objective’ situation of crisis (O’Connor, 1987),
but the elites’ perception of an existing or impending crisis, and the moral
interpretation they are able to offer regarding the contingent situation and what it
requires. Any situation perceived as upsetting the established balance of power is,
from the perspective of the elites, critical. It may be a war, or a domestic conflict,
associated with substantial political-economic turmoil (I obviously rely here on
the sociological tradition according to which punishment is an ideal vehicle to
fashion messages concerning society’s morality and unity as in Durkheim [1930],
Erickson [1966], and Mead [1964]).
In order to understand the way in which hegemony is linked to punishment,
we need to go back to Rusche’s concept of less eligibility. This concept, first
found among eighteenth-century social philosophers, embraces the public policy
principle according to which the lowest strata of the working class should find
penal conditions, considered as a whole, to be less ’eligible’, that is, acceptable,
than ’free’ conditions outside the prison walls. According to Rusche and
Kirchheimer’s historical reconstruction in Punishment and Social Structure
(1968), a harshening of the working conditions for the generality of workers
should translate into a harshening of penal conditions. To use Marcuse’s apt
expression of ’performance’, we could say that, in Rusche’s view, there is a
relationship between the level of performance that is asked of the average worker
in a given society at a given time, and punishment. If, on the one hand, ’labor
time, which is the largest part of the individual’s life time, is painful time, for
alienated labor is absence of gratification, negation of the pleasure principle’
(Marcuse,1955: 45), on the other hand the degree of pain connected with labor is
certainly a variable, resting on the amount and rate of performance that is
demanded.
We may think of punishment, therefore, as related to the ’economy of
performance’ of a society at a given time. When performance demands increase,
the area of human behavior that is punished (and the general severity of
punishment) will also increase. The opposite happens when performance
demands decrease. Punishment functions as a sort of ’gazette of morality’,
announcing what is allowed and what is forbidden at a specific place at a specific
time.
In this view, Rusche’s theory is a theory of social control, in relation to the
generality of society. Those social strata close to the threshold of punishment, are
being controlled more than the ’dangerous classes’ themselves. The connection
that should be established through research is not therefore between an indicator
of punishment, that is rates of imprisonment, and an indicator of unemployment,
based on the (faulty) assumption that imprisonment functions to control a

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Marxian ’industrial reserve army&dquo;. Rather, a direct connection should be

established between increased performance demands applied to the working class
and increased penal pressure on the bottom strata of society (the ’underclass’).
Such pressure creates a sort of ’social whip’ effect that makes everybody work
harder, especially those who are close enough to the bottom to hear the howling
and moaning of the ones being hit. At the turn of the century, Jack London
vividly wrote:
I had dropped from the proletariat into what sociologists love to call the
’submerged tenth’, and I was startled to discover the way in which that submerged
tenth was recruited.... I saw the picture of the Social Pit as vividly as though it
were a concrete thing, and at the bottom of the Pit I saw them, myself above them,
not far, and hanging on to the slippery wall by main strength and sweat. (London,
1903: 363-5)

As we shall see in the case of the US, Rusche’s original emphasis on less eligibility
is theoretically more insightful, and more useful, than the usual reading
developed from it, focused only on the correlation of imprisonment and
unemployment. Rusche’s theory, however, has basically a descriptive and at
most a predictive value, because it does not explain why penal sanctions seem to
work so smoothly in accordance with the social control ’needs’ of elites.

ELITES, THEIR CIVILIZING MISSION AND THE ’ECONOMY’ OF

PUNISHMENT

As an explanatory theory, Rusche’s work cannot be relied upon. In fact, in the

original outline of his work (Rusche, 1933), as well as in the manuscript that was
to become Punishment and Social Structure (1968), Rusche was not very explicit
on a theoretical explanation of the nexuses he had found in historical analysis

(Melossi, 1978, 1980). Nevertheless, most of the authors mentioned above,

claiming to follow in Rusche’s steps, assumed that the desiderata of economic
and political elites can somehow be smoothly converted into the deeds of the
criminal and penal justice systems. How can it be, however, that the elites’ wishes
on penality come to be granted so readily? How can it be that criminalization
seems to be linked, at least in part, to required levels of social performance?

Jankovic, and some other 1970s authors, appeared to believe in what I would like
to call a ’visible hand’ that has been transforming the ’systemic needs’ of

capitalism into the movement of penalties. The progressively oriented social

sciences of the time saw ’the State’ as the magic intermediary between
exploitation and repression:
In this paper we develop a class conflict theory of macroeconomic policy based
upon Marx’s view of the state ... post-World War II macropolicy formulation has
been dominated almost completely by the representatives and apologists of the
capitalist class ... for the purpose of this paper we assume that [the capitalists’]

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main concern is the maximization of profits. Correspondingly, this becomes the

primary objective of state macroeconomic policy. (Boddy and Crotty, 1975: 1-2).
This same logic was extended to the study of criminal policies. Jankovic, as we
have seen, postulated that the penal system was used as a form of control of the
’surplus labor’ permanently produced by the capitalist machinery (Jankovic,
1977: 95). In his famous and enormously influential essay on ’ideological state
-
apparatuses’, Althusser employed the concept of the state as a ready-made tool
that helped connect the structure of the factory to the school or, for that matter,
to the prison (1971). However, the question that these authors have been hesitant
in asking was, how does the individual law-maker, moral entrepreneur or police
officer help establish these connections through institutional and cultural
channels that are both inside and outside ’the state’? (Melossi, 1990: 172-5).
In trying to answer this question, social theorists usually find themselves
between the rock of a structuralist position, in which actors are Parsonian
’judgemental dopes’, as Garfinkel dubbed them (Garfinkel, 1967: 68), and the
hard place of an elite theory which may come dangerously close to a vision of
history as the history of Great Men’s deeds.
It seems to me that it would be disingenuous to deny the role of penal
reformers, from Bentham to Beccaria, from Penn to Rush. They forged and
made public ideas that have become common coinage in subsequent centuries. At
the same time, it would also be disingenuous to deny that the role of these
innovators was often only that of compiling the most successful version of a
vocabulary whose key terms were widely circulating within their societies. One
has only to think of Beccaria and the European Enlightenment (Beirne, 1991),
Bentham’s Panopticon and Utilitarianism (Bentham, 1977), Coornhert’s Rasp-
huis and early seventeenth-century Amsterdam mercantile society (Sellin, 1944),
Benjamin Rush and Quaker Pennsylvania (Dumm, 1987: 87-112), Lucas and
Foucault’s ‘official technicians’ in nineteenth-century France (Foucault, 1977:
~ 231-56, 318). In fact, what has generally distinguished the penal and social
reformers has been their ability to extend the standpoint of the ruling elites, of
which they are usually a part, to include the generality of the social relations
belonging in that society. They have performed the role of those whom Gramsci
called ’organic intellectuals’:

Every social group, coming into existence on the original terrain of an essential
function in the world of economic production, creates together with itself,
organically, one or more strata of intellectuals which give it homogeneity and an
awareness of its own function not only in the economic but also in the social and

political fields. The capitalist entrepreneur creates alongside himself the industrial
technician, the specialist in political economy, the organisers of a new culture, of a
new legal system, etc. (Gramsci, 1971: 5)
This insight by Gramsci radically transformed the usual quasi-ontological
Marxist reading of the notorious ’architectonic metaphor’, the relationship
between structure and superstructure, into the concept of a situation brought
about by the practical, political accomplishments of the elites. In the type of

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society described by Marx and, still, by Gramsci, economy-based elites needed

to establish social hegemony in order to secure the reproduction of their
structural base - the historical background to Volume One of Capital (Marx,
1970). The reproduction of themselves as elites, the reproduction of the society
they led and, last but not least, the success of the religious and ethical ideals they
stood for, were one and the same. Organic intellectuals, and therefore also penal
and social reformers, are not driven merely by instrumental goals. As Foucault
remarked:
11

[I]f you ask me, ’Does this new technology of power [that he had described in
Discipline and Punish] take its historical origin from an identifiable individual or
group of individuals who decide to implement it so as to further their interests or
facilitate their utilisation of the social body?’ then I would say ’No’. (Foucault,
1980: 159)

The reformers launched ’projects’ towards society, projects whose fate rested
with the outcome of that ’distant roar of battle’ to which Foucault referred in the
conclusions of Discipline and Punish (1977: 308), and which I venture to call the
battle for hegemony.
Much recent literature has unduly characterized the concept of social control
in an instrumental way, shortcircuiting it with those of state and capitalist ruling
class (Cohen, 1989; Chunn and Gavigan, 1988; Rothman, 1983; Thompson,
1981; Van Krieken, 1991). But the opposition between social control and social
reform is a false one. Efforts at establishing social control have often been
oriented toward a complex view of the world that ruling classes believe to be their
mission to sustain (Melossi, 1990: 22-4).
As we will be able to consider more specifically for the American case,
hegemonic Weltanschaungen are in particular need of being re-emphasized in
situations of crisis. I would like to suggest that the reason why we find statistical
evidence of association between indicators of imprisonment and indicators of the
economy is that, under specific circumstances and with all the provisos already
mentioned, moral elites tend to respond to a situation of strength of the working
class on the labor market as if this were a situation of moral crisis in society.
Indeed, from the perspective of their hegemony, such is the case. A weakening of
the work ethic, a decreasing lack of respect for hierarchical authority relation-
ships, the emergence of looser customs, are all elements of moral crisis that can be
easily related to a situation in which, as Kalecki wrote, ’the sack’ has lost some of
its force as a ’disciplinary measure’ (Kalecki, 1972: 78) or, in keeping with my
previous metaphor, as a social whip. We can conceptualize this set of connections
whether or not we see ’the site of production’ as the driving force of society. I
doubt that today this might still be the case. But even in a post-industrial society,
where social insubordination emerges as a direct challenge to political authority-
as has been the case at least since the 1960s - it is licit to assume that such
insubordination may spill over into, or be reinforced by, what happens in the
economy.
The assumption that we need to make in order to solve the riddle of the

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relationship between the economy and imprisonment, is that labor insubord-

ination tends to be interpreted by moral elites as an aspect of the general moral
malaise of society. Agencies of social control, from law-makers to judges, from
newspeople to police officers, will react to what they perceive as a moral crisis
without necessarily being cognizant of the more immediately economic aspects
of the crisis.6 Therefore, following social situations during which elites see their
hegemony challenged, two things tend to happen simultaneously, apparently
linked only in the murky atmosphere of a ’public mood’: people work harder for
less money, and prisons fill beyond capacity. In other words, demands of social
performance and the less eligibility principle seem to move in unison.
In short, the elites’ perception of a crisis affects the hegemonic ’vocabularies of
punitive motive’ throughout society in a way which is not (necessarily)
transmitted institutionally but rather culturally, because of the power and
prestige connected with the intellectual formulations which are fashioned within
moral elites. The social process that is set in motion by the moral elites’ cultural
elaboration of a situation of social crisis, be this economic conflict, a war, a
change of political regime, or even a ’crime wave’, is akin to the way in which
Erickson (1966) described the process of redefinition of norms - which goes
together with a redefinition of the identity, or aspects of the identity, of the social
group concerned. In the same manner in which a given ’crime wave’ is played out
within the group with the consequence of publicly discussing and redefining
particular aspects of the normative outline of a given society, so changing
concerns about crime contribute to redefining the general moral tone of society.
It is a continuous endeavor, whereby the threshold of punishment tends to be
related to the societal attitude toward demands of performance on the one hand,
and deviance on the other. The insights of social psychology and philosophy on
the relationships between ressentiment and punishment, are certainly connected
to the processes I am referring to here (Ranulf, 1938; Scheler, 1961; Horkheimer,

1936).
We could hypothesize therefore that projects for toughening punishments are
part and parcel of a more general climate of social disciplining linked to critical
situations, as these are defined within the parameters of hegemonic thinking. The
situation of the economy, and more specifically of the labor market, generally
(but not necessarily) contributes to such definition. A contrario, a climate of
tolerance is linked with a situation of ’social peace’, that is, a situation of
unquestioned hegemony - no matter what happens to crime rates. In other
words, the nexus between economic change and penal change is but a special case
of the more general nexus between social crises and change in penal policies,
when economic indicators may be taken to express a situation of crisis. This is not
always the case, however, as in Greenberg’s study on Poland (see Note 3), or De
Haan’s failure to find a statistical association between imprisonment and
unemployment in the case of Holland in recent years (De Haan, 1990:36-63). In
given historical and social situations, in fact, economic change may not be
perceived as connected to situations of crisis. Similar may be the case of those
societies in which political crises and delegitimation affect imprisonment without
a necessary link with the economy, as is suggested in the results of Benacquisto’s

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research, according to which a historical association exists between ’outbursts’ of

incarceration and situations of political crisis in a number of different national
cases (Benacquisto, 1989). Once again, the main ’exogenous’ variable is the

perception of crisis by elites, whatever its putative cause, and whatever the state
of given parameters of the economy.

PUNISHMENT AND THE ’SILENT DEPRESSION’ : THE CASE OF THE

UNITED STATES, 1970-92

As I have already mentioned, a case that is usually considered particularly

difficult for a Ruschean perspective is that of the US between the 1970s and early
1990s. In particular, the famed ’Reagan-Bush prosperity years’, are often
considered as a major exception to the theory, because they were accompanied
by ever-increasing imprisonment rates.
The question to ask, however, is obviously, ’prosperity’ for whom? On the
one hand, during the 1960s, the US had a low unemployment rate accompanied

by altogether favorable economic conditions and a stable or declining imprison-

ment rate. Then, the recessions clustered around the years 1971, 1975 and 1982
coincided with the inversion of the ’decarcerative’ trend of the 1960s (corre-
sponding therefore to the prediction one would formulate based on a traditional
reading of Rusche’s theory). Finally, from the late 1970s and throughout the
1980s, including a period, 1983-90, which is usually referred to as a period of
sustained economic expansion, imprisonment rates went on climbing without an
end in sight.
Should we really think of the period 1983-90 as an exception, in which an
increase in imprisonment rates seemed to accompany economic growth instead
of economic decline? I think the more careful reading of Rusche’s theory that I
have previously suggested may be useful in trying to answer this question. The
view that those years should be considered exceptionally good years is based on
considering general indicators of the whole economy, such as unemployment
rates (Zimring and Hawkins, 1991: 133-4). However, what we should be
interested in from Rusche’s perspective are indicators of the pressure to perform
exerted on the working classes. There is no doubt that, according to traditional
labor economics, such pressure is usually correlated with a higher unemploy-
ment rate. However, this was not the case in the 1980s, at least as far as the official

unemployment rate was concerned (Schor, 1991: 76, 197).

In fact, in spite of the rhetoric associated with the ’Reagan prosperity years’,
scholars have pointed out that, starting in the early 1970s through the early 1990s
recession, the American economy has known a veritable ’Silent Depression’
(Peterson, 1991). If we look beyond the data on unemployment rates and per
capita income, we realize that, since the ’watershed year’ of 1973, the American
economy has been in a depressed state:

Abruptly after 1973 the rate of growth in real weekly earnings dropped. From a
1973 peak of $327.45 in constant (1982-84) dollars, real weekly earnings slipped to
$276.95 during the 1982 recession. In spite of the recovery and long expansion of

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the 1980s they continued to fall to $264.76 in 1990. Thus seventeen years after ...
and in spite of the vaunted prosperity of the Reagan years, the real weekly income
of a worker in 1990 was 19.1 percent below the level reached in 1973! (Peterson,
1991 : 30)

Median family incomes in constant dollars stayed about the same during this
period but the explanation is obvious: more and more women entered the
workforce and so more work outside the home made up for decreasing
individual earnings. The result has been an unprecedented and unique increase
in the time worked by Americans and especially by American women, both
individually and as a whole. Schor has documented this increase in working
hours since the end of the war and especially since the late 1960s, which has
brought American workers, and especially American working women, to work
an average of about two months a year longer than their European counterparts

(Schor, 1991: 2), and about a month a year more than they would have done
some twenty years earlier (Schor, 1991:29). For the great majority of
Americans therefore, the last twenty years have meant working increasingly
more for less and less real earnings. There are however a few exceptions. If one
looks at the average family income by deciles instead of by overall average, then
the two upper deciles are the only ones to show a very modest positive change
which in the case of the upper 10 percent is not so modest, 16.5 percent, for the
top 5 percent is 23.4 percent, and finally for the top 1 percent, those making
$400,000 and more, is equal to an increase of 49.8 percent (Peterson, 1991: 33).
On the other hand, the families that have lost the most between 1977 and 1988,
down 14.8 percent, are those in the lowest decile (Peterson, 1991: 33).
Accordingly, the poverty rate has been on a steady increase since 1974 (when it
reached only 11.2 percent) and particularly since 1979, approximating 15
percent in 1991.
In fact, one could very well consider the 1980s as an attempt by the US
economic and political elites to restore class inequality and economic profit-
ability to pre-1960s levels, given that, during the 1960s, profits had been
declining and wage differentials had reduced especially in favor of the poor and
the minorities, as usually happens when an economy is approximating full
employment (Boddy and Crotty, 1975: 4-5, 9; Heap, 1980-81; Bowles and
Gintis, 1982). The ’rugged individualism’ of the Reagan-Bush years, if nothing
else, caused a deep redistribution of income in favor of the most privileged
strata in society, within an overall situation in which American structural

problems with lagging productivity and increasing competition especially from

the Europeans and the Japanese did not go away. Quite the contrary. As
Ronald Reagan promised in his famous speech on ’America’s New Beginning’
(1981), this new beginning was supposed to take America back to the good old
days before the New Deal - a mix of propaganda and wishful thinking
certainly, not enough to deal with the deficit, but enough to cause at least a
social redistribution of income and send everybody who was employed back to
work harder!t
The revanche of the American establishment against the 1960s started with

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the recession of 1970-71, which was so commented in the Wall Street Journal
(under the rubric ’Conciliatory Mood’):
across at large and small companies, workers are frequently choosing
the country
to be conciliatory when faced with the threat of losing their jobs. That is in
more

sharp contrast to the labor scene of recent years [i.e. when unemployment was
low], both union and corporate officers agree. Not long ago, they say, rank-and-
filers... would probably have been angered by the thought of concessions. But
these days ... are bringing about a softer approach ... manufacturing executives
have openly complained in recent years that too much control had passed from
management to labor. With sales sagging and competition mounting, they feel safer
in attempting to restore what they call ’balance’. (quoted in Boddy and Crotty,
1975: 8, emphasis added)

On 12 October 1974, the editors of Business Week wrote that, ’Some people will
obviously have to do with less ... yet it will be a hard pill for many Americans to
swallow - the idea of doing with less so that big business can have more’ (quoted
in Chiricos, 1989: 14). Again at the end of the 1970s the dominant message
coming from political and economic elites was one of ’less is more’, ’decline in the
standards of living’, ’discipline’ and ’pain’ (O’Connor, 1987: 30-1).
What started in the 1970s would appear to be the most classic maneuver
directed to ’disciplining the working class’. In the early 1970s it was a matter for
the American traditional leadership - ’the power elite’ of Mills (1956), the
’military-industrial complex’ of Eisenhower - to reestablish itself after a season
of deep social unrest. The erosion of profit margins was only an element, and
probably not even the most important, of the larger picture we all know well and
that was certainly defined at the time as one of crisis: the insubordination of
larger and larger segments of black Americans and peoples of color, the
movement against the Vietnam war, the countercultural movement and all the
other elements of the 1960s (Gitlin, 1987). The problem of discipline, therefore,
was inextricably linked with a thorough-going restoration of the type of ethic

which, especially in America, has always been linked to capitalism: hard work,
individual responsibility, profit motive.

MORAL ELITES AND VOCABULARIES OF PUNITIVE MOTIVE: CHANGING

DISCOURSE ON CRIME AND PUNISHMENT IN THE US, 1974-92

Based on my revised version of Rusche’s interpretive scheme, we should expect

that, starting in the early 1970s, in order to sustain the increased demands of
performance on the generality of the population, penal pressure was going to be
greatly intensified, making it harsher and covering wider and wider numbers of
people and areas of behavior, irrespective of what had actually happened to
’crime’.
Indeed, the relative stability, if not decline, of imprisonment rates in the 1950s
and 1960s, was followed, after 1973, by ’a long and uninterrupted ascent’
(Zimring and Hawkins, 1991 :121). In 1990, with more than one million people
in prison and 455 inmates per 100,000 of the population, US imprisonment rates

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had about tripled in twenty years, were the highest in American history and, at
the same time, the highest in the world, leading South Africa (311 per 100,000)
and the former Soviet Union (268 per 100,000 in 1989), with Western European
countries and Japan trailing far behind with 40-120 per 100,000 (Mauer, 1992).
The prison system of the State of California, with more than 100,000 inmates,
held about 40,000 inmates more than Great Britain or Germany, and 60,000
more than Italy (although its population is about half that of these countries). An

overwhelming rate of people subjected to penal constraint (as well as of people

victims of crime) are minorities and especially African-Americans. Out of every
100,000 male African-Americans, 3370 are incarcerated, about seven times the
number of white Americans (for a comparison, in South Africa 681 blacks out of
100,000 are incarcerated).
Once we restore the original meaning of Rusche’s theory and we look more
deeply into American economy than the unemployment rates, hardly has a
theory of punishment seemed to have a better predictive capacity than Rusche’s,
when applied to this case. Last but not least, such a theory makes sense on a
comparative level, shedding light on the fact that, whereas in the United States
both the demands of performance and punishment have risen as sharply as
shown, in Europe or Japan, instead, where punishment rates have remained
relatively stable, also the pressure on workers to perform has not increased as
drastically as in the United States (Schor, 1991).7
However, whereas my reading of Rusche’s theory has strong predictive
power, nowhere in it are we able to find a convincing explanation of how the
tremendous increase in imprisonment rates during this period might have come
about. Here I believe we should be succored by the previous discussion about
hegemony and punishment, where I tried to go beyond the limitations of
Rusche’s economism. In that discussion, I suggested a link between the political
establishment’s response to change and instability as a situation of crisis, the
process of rearticulation of hegemony, and more punitive penal vocabularies. If
the theory is correct, we should expect that an extensive redefinition of punitive
vocabularies took place in the US between the early 1970s and today. Of course,
everybody who has followed the evolution of public discourse on crime and
punishment, and especially of mainstream US criminology during the last
twenty years, knows that this is exactly what happened.
Still in the early 1970s, opposition to imprisonment as the solution to crime
problems was so widespread that in 1973, the ’Task Force Report on Correc-
tions’ of the National Advisory Commission on Criminal Justice Standards and
Goals could state that, ’no new institutions for adults should be built and existing
institutions for juveniles should be closed’ and that ’[t]he prison, the reformatory
and the jail have achieved only a shocking record of failure ... these institutions
create crime rather than prevent it’ (1973: 358, 597, quoted in Zimring and
Hawkins, 1991: 65-6). And the National Council on Crime and Delinquency
would add that ’only a small percentage of offenders in penal institutions today’
would really need incarceration, so that ’[i]n any state no more than one hundred
persons would have to be confined in a single maximum security institution’
8
(NCCD, 1973: 456, quoted in Zimring and Hawkins, 1991: 87).~

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However, the times were quickly changing. Probably, no contribution to such

tum-around was more effective than Martinson’s ’What Works?’ article (1974)
that, whatever the intentions of the author, contributed to steering penal and
criminal policies away from rehabilitation and toward deterrence. Martinson
surveyed a number of studies that were critical of rehabilitative programs, and
concluded that policy-makers would do well to try out deterrence, on which
there were no studies available, because criminologists could not therefore
dismiss it out of hand as not working (Martinson, 1974: 49-50). It is worth
noticing that the studies surveyed in Martinson’s article had been published
between the early 1950s and the mid-1960s, so were hardly the stuff of new and
shocking discoveries. Indeed, the focus on these studies and especially on
Martinson’s article had much more to do with the Zeitgeist than with the putative
’normal’ procedure of scientific discovery.9 As often happens in the practice of
the criminal justice system (then followed by criminological ’theory’), decisions
about what to do with criminals carry with them ideas about crime and criminals.
It so happened that the ’classical’ school of criminology knew a resurrection in
force, parading the myth of Beccaria’s humanitarianism and free-will philosophy
(Beime, 1991) as the civil liberty legitimation (AFSC Working Party, 1971;
Greenberg and Humphries, 1982) for policies that became more and more
inspired to the deeply libertarian principle, ’lock them up!’ (later on, ‘kill’em!’).
As Lilly et al. comment:

The 1980s ushered in ways of thinking about crime which, though packaged in
different language, revitalized the old idea that the sources of lawlessness reside in
individuals, not within the social fabric.... Locking people up in unprecedented
numbers only makes sense if one believes prisons reduce lawlessness by deterring
the calculating and incapacitating the wicked. (Lilly et al., 1989: 204)

The focus was to be placed again on the individual, whether he was conceived as
being biologically determined (Wilson and Herrnstein, 1985) or, alternatively, a
calculating utilitarian who can be deterred if punishment is harsh and certain
enough (van den Haag, 1975; Becker, 1968). Again the focus was on ’street’ and
’predatory’ crime (Morris and Hawkins, 1977; Wilson 1977); on wicked human
nature and the related necessity of deterrent punishment (van den Haag, 1975);
on the necessity to take the side of social control agencies against the dangerous

classes (Wilson, 1977: xix; van den Haag, 1975: 257-b1);’° on developing a ’new
penology’ around ’no-nonsense’ concepts of ’risk’ and ’incapacitation’ (Feeley
and Simon, 1992); and finally toward the end-point of this whole development,
on transforming lower-middle-class prejudice into the pretension of a ’General

Theory of Crime’ (Gottfredson and Hirschi, 1990; see, for a real gem of this
rhetoric tradition, pp. 89-90).
This general turn in criminology chose to ignore for more than fifty years of
accumulated sociological knowledge about crime and deviance, from differen-
tial association to structural frustration, from labeling to the most common-
place notions of the relative and legally-bound character of ’crime’ and
’criminal’. If such a right-wing turn has not defeated crime, it has not failed to
bear fruit, by contributing to the increase of hate, division, conflict and pain,

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unifying not society but one section of society against another. Picked up by the
popular media, it became, according to a Time magazine 1982 article, an
’imprisonment spree’:
the public wants to ’get tough’ with criminals, and legislators, prosecutors and
judges are obeying that diffuse mandate by sending more people away for longer
stretches ... U.S. citizens [have] reached a critical level of panic and anger at what
they feel is a constantly lurking threat. (Anderson, 1982: 38, 40)
The increasing degree of propensity to punishment among the American public
in this period can also be gauged by the rising percentage of Americans answering
’yes’ to the question ’Do you favor the death penalty for a person convicted of
murder?’ asked by Gallup every year since 1936. This percentage rose to an
all-time high of 72 percent in 1985, having reached an all-time low of 42 percent
in 1966 (Zeisel and Gallup, 1989).
Of course, this was not only, or even mainly, the doing of criminologists.
Conservative and moderate politicians alike sounded the call for more prison and
more death with fervor, and jumped on every sort of punitive bandwagon. It is
hard to think of an aspect of the culture of the 1980s that expressed the level of
hegemony reached by the right wing better than the punitive propensity of the
period. From the war on drugs to driving under the influence of alcohol
(Gusfield, 1981), from the construction of the ’missing children’s crisis’ - that Joe
(1991) has so aptly dubbed ’the milk carton madness’ - to the attempts at
criminalizing the mothers of drug- and alcohol-exposed babies (Noble, 1992),
from the effort to again penalize reproductive rights to alliances between the right
wing and sections of the women’s movement on such issues as domestic violence,
censorship, pornography and rape (Daly, 1992; Lacombe, 1992) , all kinds of
trouble and forms of oppression were reframed in strictly individualist,
voluntarist and punitive terms (Pitch, 1990).
Both at the state and federal level, laws were passed that created more crimes
and made prison sentences more ’automatic’ and longer. Parole was severely
limited and this became one of the main reasons for the increasing imprisonment
rates, for instance in California (Berk et al., 1983). At the same time, the changes
in the composition of the Supreme Court and the general conservative shift in the
country, made sure that, even where laws were not changed, the social, judicial
and political environment would emphasize severity versus leniency at each
decisional juncture in the criminal justice system. At the end of the Bush
presidency, in the spring of 1992, the explosion of an ’underclass’ increasingly
trapped within the ’city of quartz’ (Davis, 1990) found its pendant in the ’crime
bill’ that George Bush had started pushing at the peak of Gulf War jingoism
(Bush, 1991 a, 1991b), and that was later described by Senator Joseph Biden as
doing ’everything but hang people for jaywalking’. These were both extreme
manifestations of a movement that started in the early 1970s, together with the
onset of the ’silent depression’ in the economy, and the reversal of a previous
decarcerative trend in imprisonment rates. On the day of William J. Clinton’s
Presidential Inauguration, on 20 January 1993, American culture had not yet
exited the moral crisis started in the 1960s. On the contrary, the loss of its

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traditional enemy together with the emergence of a multipolar world economy,

had only deepened such crisis.
,

_ , ~.,
CONCLUSION .

A discursive chain connects forms of behavior as far apart as expounding moral

values, doing business and administering punishment, from legislative statutes,
to media reports, to articles in specialized journals and magazines. Whereas some
of these are indeed discursive statements that approximate what is usually meant
by a bureaucratic ’directive’, most should be viewed as contributions to, and
fine-tunings of, an existing hegemonic discourse on particular matters of
morality which are deemed serious enough to be dealt with as matters of penal
importance.
Punishment is a central symbolic activity in a society, much more important
for what it tells every member of that society about desirable behavior and
threatened sanctions, than for the way it is applied to the individual offender. In
this view, higher imprisonment rates are a cultural artifact before anything else, a
cultural artifact that responds variably but predictably to historical change - what
elsewhere I have dubbed a ’grounded labeling theory’ (Melossi, 1985b) .
Historical change in the politico-cultural mood&dquo; may be ’picked up’ by a
number of different indicators: indicators of political change, of demographic
change, of economic change, as in the literature linking imprisonment to
unemployment. In discussing this literature, I have suggested that a revised
reading of Rusche’s theory as a theory of social control, centered in the notion of
’less eligibility’, is better able to account for the socio-historical situation of the
Reagan-Bush so-called ’prosperity years’, than the research literature based on a
more conventional understanding of Rusche’s contributions. Neither Rusche
nor his successors, however, have been able to explain the providential

consistency of results between the actions of criminal and penal justice agencies
and the putative plans of the members of the power elite. It is in this conjunction
that I find a theory emphasizing the role of hegemony and its articulation
through vocabularies of punitive motive to be crucial. We have seen this idea at
work in the way in which the deep crisis that opened up in the US in the 1960s has
been accompanied by a long-lasting, dramatic change in the nature of public
discourse on crime and punishment, with remarkable practical consequences.
While it may be that higher imprisonment rates are influenced by the
unintended consequences of a set of micro-decisions (Box and Hale, 1985), it is
also true that these micro-decisions (not only by court personnel but also by
police officers, lawmakers, moral entrepreneurs, etc.) are not made in a vacuum.
They have to be accounted for, on both legal and moral grounds, within a
hegemonic discourse, a discourse toward which those who administer the
criminal and penal justice systems feel particularly responsible (whether or not
they share the wisdom of the contingent political arrangements of those
systems). The concept of a changing hegemonic ’vocabulary of punitive motive’,
may help us explain the consistent character of all these micro-decisions avoiding

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at the same time the assumption of conspiratorial intentionality generally

assigned to those who are entrusted with making these decisions.
Signs of crisis (which may or may not include crime) must be read and
perceived socially as such, i.e. they must be perceived as such by power elites.
Depending on time and place, concern may be greater for ’terrorism’ than for
’organized crime’, for ’drugs’ than for ’soccer hooliganism’, or for a ’real’ war, to
correct the deviance of a far-off Third World regime - as Matza noted about the
penultimate major American war (Matza, 1969: 145) - than for a ’domestic war’
to correct the deviance of our own ’underclass’. The changing sensibilities of
society tend in fact to vary according to the sensibilities of its elites. Society’s
members learn to believe that the concerns and the enemies of the elites are their
concerns, and their enemies. This is hardly the result of conspiracies. It is indeed
part of, and not an irrelevant contribution to, what we refer to as ’hegemony’.

NOTES

Work on some of the ideas presented in this article was started for the Workshop on
’Controlling Social I,ife’, European University Institute, Florence (Italy), 30 May-2 June
1989. Afterwards, this piece went through too many different incarnations to recall them
all. I want to thank l’lieodore G. Chiricos, James Inverarity, Edwin Lemert, Mark
Lettiere, Sheldon L. Messinger, Alvaro Pires and the anonymous reviewers for very
helpful substantive and editorial comments. I also want to thank, for their hospitality and
support, the European University Institute in 1988-9, and the Davis Humanities Institute
in 1990-1, as well as those colleagues in both Institutes with whom I had a chance to
discuss various vcrsions of this paper. Finally, I would like to thank the friends and
colleagues of the Centre of Criminology of the University of Toronto who invited me to
present my ideas in September 1992. To everybody I would like to express my gratitude
even if the responsibility for the final product is of course only mine.

1. An anonymous reviewer noted that all these studies are based on male
imprisonment rates and so the theories discussed here are not theories of
imprisonment in general. However, in all penal systems I know of, female inmates
are a very small fraction of the total, usually around 4-5 percent. It seems to me
therefore that we may very well talk of male imprisonment rates or imprisonment
rates indifferently. This does not mean of course that it would not be interesting to
know whether that 5 percent is affected by the same kind of social processes as the
general rate. Of the studies mentioned in this paper, only Berk et al. (1983) made a
distinction between male and female prisoners (in California, from 1851 to 1979)
and found that admissions of females to prison were not affected by the kind of
exogenous variables that affected male admissions.
2. Note that some of the studies already mentioned use yearly admissions as a measure
of imprisonment, whereas others use instead the inmates’ yearly count on a given
day. The weaker result reported by Zimring and Hawkins concerning the change
correlation probably reflects the lack of synchrony between the cyclical nature of
business indicators, such as the unemployment rate, and the more inertial character
of the measure of imprisonment used by Zimring and Hawkins, the number of
inmates on a given day. However, it probably depends also on the divergence of
imprisonment rate and unemployment rate during the years 1983-90, which will be
discussed below.
3. However, Greenberg did not find that the same relationship held true in the case of

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post-war ’Socialist’ Poland. In trying to account for this difference, he suggested

that in the case of Poland there may have been politically driven changes in
imprisonment rates, achieved by the regular use of executive amnesties (Greenberg,
1980). The same probably applies to the case of Italy (Zimring and Hawkins, 1991:
194-6); this suggestion reminds one of the study by Richard Berk and collabora-
tors, who came to the conclusion that parole was consciously used in California
between 1907 and 1977 to regulate the prison population, a system that finally
broke down when the legislature made parole release impossible in a significant
number of cases (Berk et al., 1983).
4. In the Italian system, in which roughly 50 percent of the inmates are usually in
prison awaiting trial, economic change seems to be associated with the number of
those awaiting trial, but not the number of those who are in prison after sentencing.
For some of the implications, see Melossi (1989: 322).
5. Jankovic could not support his hypothesis that imprisonment was used to reduce
unemployment in the US. As he hypothesized, imprisonment population is
probably too small to really make a dent in unemployment (Jankovic, 1977:100-1).
This consideration alone should direct researchers toward giving greater consider-
ation to symbolic-cultural hypotheses instead of instrumental ones.
6. For a discussion of the relationship between ’social control’ and ’crime’, in
connection also with Foucault’s concepts of ’illegalities’ and ’delinquency’, see
Melossi (1992).
7. For a somewhat similar reconstruction of analogous events during this period in
other countries, see Brake and Hale (1990) on England and Wales, and Mandel
(1991) and McMahon (1992) on Canada.
8. Throughout this paper, I have been taking for granted that imprisonment is still
today, in the public mind, the main form of punishment
. The use of fines and
especially of probation and other ’alternatives to imprisonment’ would require a
different analysis (Melossi, 1989:313-15).
9. I am indebted to Sheldon Messinger for this observation.
10. I owe many of these examples to an essay by Platt and Takagi (1977).
11. In their volume on The Scale of Imprisonment
, Zimring and Hawkins again and
again have to face the fact that the increase in imprisonment rates in the 1970s and
1980s cannot be attributed to any single clear antecedent, a situation that calls
therefore for terms such as ’public mood’ (Zimring and Hawkins, 1991: 175).
However, they shy away from exploring the implications of this conclusion,
wedded as they are to more ’positive’ accounts. This article takes their central
finding seriously by trying to articulate what the meaning and sources of a ’public
mood’ might be.

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