The Birth of the Penal State: Historicizing a Central Concept

• In Event: The Concept of the Penal State

Abstract

Much of the theoretical innovation around the concept of a "penal state" emerged to make sense of the rise, continuation, and consequences of American mass incarceration, or else the elevated levels of incarceration in Europe, in the late-modern era. Although some scholars trace a given penal state's roots to earlier periods, such as those beginning in the 1950s or the early twentieth century, most studies remain focused on the present. This presentist focus raises the question: is the penal state a historically specific concept, or is it more generalizable? To begin to answer this question, I look at the earliest conceivable manifestations of a penal state in the United States---the period of transition between locally enforced colonial punishment and state-enforced modern punishment resulting in the rise of long-term incarceration as the standard punishment for serious crimes. Using a dataset of nearly 600 statutes, resolutions, and constitutions from 1785-1822 across the 24 states in the Union, I explore the role of individual states in their new penal regimes to inductively identify the penal state’s features. This analysis both takes the role of the state literally and seriously while offering a contrast to contemporary understandings and manifestations of the penal state.

Author

• Ashley T. Rubin, University of Hawai'i at Manoa