Punishment's Legal Templates: A Theory of Formal Penal Change

Abstract

The well‐known gap between law on the books and law in action often casts doubt on the significance of changes to law on the books. For example, the rise and fall of penal technologies have long been considered significant indicators of penal change in socio‐historical analyses of punishment. Recent research, however, has challenged the significance of apparently large‐scale penal change of this kind. This article clarifies the significance of penal technologies' rise and fall by offering an alternative account of formal penal change, introducing the analytical concept of “legal templates,” structural models of legal activity (e.g., punishment) available for authorization and replication across multiple jurisdictions. Analyzing punishment's templates explains how new penal technologies can be important harbingers of change, even when they fail to revolutionize penal practice and are not caused by a widespread ideological shift. This article locates the significance of punishment's legal templates in their constitutive power—their ability, over the long term, to shape cognitive‐cultural expectations about what punishment is or should be. This power appears only when the template is widely adopted by a plurality of jurisdictions, thereby becoming institutionalized. Ultimately, these institutionalized templates define the scope of future punishment.

Who Pays for the Welfare State? Austerity Politics and the Origin of Pay-to-Stay Fees as Revenue Generation

“…Introduced in a moment of fiscal crisis, House Bill 542, the law to seek reimbursement from wealthy prisoners, was in line with the austerity politics of the state and with existing discussions that worked to separate the worthy from the unworthy among those benefiting from the welfare state. Furthermore, the adoption of the law solidified the legal template, as referenced in Rubin (2019), which cemented the symbolic connection between the incarcerated person and unworthiness, making the law a justified solution to a fiscal crisis.…”

“…Determining who pays for the welfare state constitutes a fiscal and political crisis, with criminal justice reform historically occurring in moments of fiscal crisis that push states and local jurisdictions in new directions, often leading to more punitive regimes and unintended consequences (Aviram 2015; Gottschalk 2015; Lynch 2009; Rubin 2019). The two time points analyzed in Michigan and Illinois represent a confluence of dynamics that converged to create a shift toward austerity politics during great fiscal crises, coinciding with the increased use of state-run institutions, prompting a discussion of fiscal responsibility to fall squarely on the shoulders of users—or their estates—rather than on the state.…”

“…The historical antecedents of the implementation of pay-to-stay in both Michigan and Illinois provide essential context for the broader nationwide shifts of fiscal responsibility from state and federal government sources to the assets and estates of those utilizing welfare state services. In many ways, the cases of Michigan and Illinois’s pay-to-stay provisions highlight the constitutive power, as referenced in Rubin (2019), of legal templates that become institutionalized across time and space, and where the practice of suing prisoners for the cost of their incarceration becomes a normative practice, enshrined not only in law but also in a moral imperative of fiscal responsibility. Casting incarceration no longer as a state function but as “user” responsibility patterns onto broader moves to formulate and conceptualize certain essential services as distinct and subject to rules, policies, and statutes that differ from the wider universe of welfare state provisions.…”

“…Building on Barker’s (2009) theory of state governance, which highlights the role of political structures and practices, we explore how the passing of legislation creating pay-to-stay fees was both historically contingent and born out of the structural and political realities of their time and place. In line with Rubin (2019), the change in laws on the books informs how pay-to-stay provisions fold into our broader understanding of punishment and the fiscal and moral culpability of incarcerated persons. Rubin’s work on legal templates provides a window into the historical and contemporary undercurrents of penal law and policy, with the spread and adoption of pay-to-stay statutes constituting an institutionalized template that shapes our conception of what punishment should be and how extensively it should be meted out.…”

“…We argue holding criminalized persons financially responsible for their offender status as a type of welfare provision reifies the legitimacy of criminal justice as a rehabilitative institution rather than a punitive one, ensuring its longevity as integral to a welfare state predicated on coercion and the myth of individual responsibility. The origination and expansion of these fees occurs under the rationale of austerity because the individualization of rehabilitation and the correctional provision of welfare goods and services are preexisting legal templates tied to the rehabilitative ideal (Rubin 2019).…”