Stumbo, N., & Little, S. (1991). Campground offers relaxedsetting for children’s visitation program. CorrectionsToday, 53, 136–144.

CONSTITUTIVE PENOLOGY

Constitutive penology is an extension of post-modernist constitutive criminological theory. Itsproponents argue that societal responses to crimeare interrelated with the wider society, particularlythrough “crime and punishment” talk. Discursivedistinctions are constructed and continuously rein-terpreted (iterated) through penal policy pronounce-ments, practical actions, discussions in the popularculture, and the proclamations, rules, and practicesof institutional structures such as the criminal jus-tice system, correctional institutions, and punish-ment and rehabilitation. These abstract distinctionsobscure the numerous ways in which penologicaldiscourse and practices permeate the wider society.They also disguise the connections between thetheory and practices of penology and the impacts,costs, and consequences that these have for oursocietal system. Constitutive penologists call for(1) the integration of prison and related penologicalpractices with society, (2) a demystification of thepenological society, and (3) the development ofmore holistic responses to criminal harm.

Constitutive penologists also argue that conven-tional penology provides the discursive referencefor actions that create, develop, and sustain prison.Discursive structures are embodied with ideologi-cal material, which provides the backdrop forsocially constructed meaning. Whether penology istaken in its broadest sense to mean the systematicstudy of penal systems, or the more narrowlyfocused investigation of the effectiveness of sen-tencing in preventing reoffending, or even themicroscopic examination of penal institutions andtheir routine practices of violence and discrimina-tion, all research sustains the continued existenceof the penological society, dubbed the “incarcera-tion nation.” Thus, debates over being in or out ofprison, over building more or less penal institu-tions, about overcrowding and overspending, about

alternatives to and challenges, all continuouslyassume the taken-for-granted existence of the verystructures that need to be questioned and explained.In short, they reinforce the prison as a necessaryreality.

CRITIQUE OF CONVENTIONALPHILOSOPHIES OF PUNISHMENT

Constitutive penologists see penal policy as part of away of talking about dealing with offenders (discur-sive process) whereby aspects of existing practiceare selected, emphasized, refined, and given linguis-tic form and formally discussed, while other aspectsare ignored, subordinated, dispersed and relegatedto the informal, are framed as aberrant, or seen as“noise.” Conventional penologists generally distin-guish between six general philosophical approachesthat underpin their policies and inform sentencingpractice: (1) incapacitation/social defense, (2) pun-ishment/retribution/just deserts, (3) deterrence,(4) rehabilitation/treatment, (5) prevention, and(6) restitution/reparation. For a constitutive penologist,any one of these “philosophies” constructs a falseseparation between the penal system and society.For example, incapacitation does not separateoffenders from society since being in prison is beingin society; prison is physically, structurally, andsymbolically integrated into the broader community.Rather than “walls of imprisonment,” there is conti-nuity between being “in” or “out.” The incarceratedare not incapacitated, since they do additional and,in many cases, more serious forms of offensivebehavior inside prison as a reaction to their confine-ment. Metaphors for the lawbreakers such as“slime,” “dirt bag,” “asshole,” and “scumbag” oftenboth objectify the humans who perpetrated theharms and provide the very “logical” penal responsethat encourages the development of a pool of sus-pects, shielding other more invisible and powerful“excessive investors” in harm production frompotential incrimination while maintaining the needfor social structures of control.

Constitutive penologists also point out that wepay the economical and social costs of mas-sively expanded prison programs. Socially, the “new

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penology” of incapacitation has accentuated the issueof race in American society, since one in threeAfrican American males aged 20–29 are in prison, onprobation, or on parole. This permeates the minorityperspective of those people of color outside prisonwho withdraw sentiment for, and commitment to,society’s formal institutions, especially from govern-ment and law enforcement. It simultaneously cor-rupts the majority white population’s views onminorities, thereby contaminating day-to-day inter-action; through this, the institutions and structuresof society reinforce the justification for implicit andinstitutionalized racism. Thus, argue constitutivepenologists, incapacitation has a major impact on thenonwhite and white populations. Once moral senti-ment is withdrawn, people feel morally justified inviolating all kinds of rules based on the rationaliza-tion that “whites” and other dominant groups in gen-eral cannot be victims of specific crimes, since theirracist violations of minorities make them the aggres-sors. Minorities are merely taking back what wasseen as rightly taken from them, including dignity,self-determination, property, and even life itself.

Finally, incapacitation feeds the false security ofsocial order and the “safer with them behind bars”mentality. The paradox is that for each constitutivebrick of incapacitation we release another swirl offreedom for “accident makers” (Bhopal), “libera-tors” (Iran-Contra), “job creators” (GM’s JeffreySmith), “risk takers” (Boesky, Milken), and “fabri-cators” (Enron). We feel safer in our homes andworkplaces, yet it is often in these routine placesthat we are most victimized.

Constitutive penologists apply a similar analysisto the other penal policies. For example, they claimthat advocates for punishment/retribution/justdeserts foster the idea that there are circumstanceswhere it is acceptable to harm others on the basisthat harmful acts should be followed by other harm-ful acts, as though it was self-evident that this equa-tion of proportion and reaction was justified.Likewise, deterrence communicates the idea thatwe should seek ways to avoid making our own actsappear like those that are punishable for fear thatwe too will be punished. Ideas of rehabilitation/treatment, argue constitutive penologists, suggest

that both the harms committed and the victim whosuffers are less important than manipulating aspectsof the individual offender’s personal or situationalenvironment to prevent them from harming again.This conceptual separation of victims, offenders,and environments overlooks the interconnected andcoproduced nature of social “reality,” failing to seethat we are locking the offender into the very socialrole that the policy intends to expunge.

Finally, constitutive penologists criticize themore radical philosophies of restitution/reparation.They acknowledge that this approach at least bringsthe victim back in to share their experience of beingharmed with the individual/agency that allegedlycaused the harm. They also point out that insofar asthe community and control institutions have a facil-itative role, then less harm is being done by thiskind of mediated intervention. However, they arguethat the hidden message of restorative justice is thatgetting together and talking about a problem can fixit, without recognizing that the very structural situ-ations in which folk are enmeshed are not part ofthe transformational mix. Neglected is an under-standing that the emerging “mediation-discourse”is itself the basis of reducing differences into leastcommon denominators, which can mean “equi-table” solutions, downplaying the uniqueness of thedisputant’s own constructions. In other words,bureaucratic discourse that promotes “mediation”and “resolutions” overlooks differences in discur-sive practices that privilege some over others andtheir associated underlying ideologies; rarely is theoutcome of restorative justice that institutions ofsociety see themselves as a contributing force.

AN ALTERNATIVE SEMIOTIC APPROACH

Constitutive penologists are concerned with howcriminologists may, despite their best intentions,replicate the very system they try to understandand critique. Criminologists do this by constructingideal typical classifications that disguise how policymakers, practitioners, targeted agents, and theoristsde-emphasize some aspects of the reality of prisonpractice as aberrant, unofficial, informal, or untypi-cal in order to make claims about its operational

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identity. To avoid legitimating the prison whileanalyzing penal policy, constitutive penologistsargue that it is necessary to use a semiotic approachthat deconstructs the role that language use plays inthe construction of the penal system and its atten-dant philosophies and institutions. Transformationof crime and societal responses to it, they argue,requires a reintegration of crime and societalresponses with the whole of which each is a part,and they indicate that a change in the whole isnecessary to bring about a change in any of itsparts. This is a holistic exercise, in many ways anal-ogous to the hologram where illumination of anypart reproduces the whole; the “part” resides in thewhole, but each part represents the whole.

An alternative direction would provide an oppor-tunity for the development of a new “replacementdiscourse.” Replacement discourse is not merelyanother package of ways to talk and make senseof the world, but a language of “transpraxis.” It con-nects the way we speak with our social relations andinstitutions, so that we are continuously aware of theinterrelatedness of our agency and the structures itreproduces through the constitutively productivework of our talking, perceiving, conceptualizing, andtheorizing. “Transpraxis is a deliberate and affirma-tive attempt not to reverse hierarchies but, instead, toaffirm those who victimize, marginalize and crimi-nalize while renouncing their victimizing, marginal-izing and criminalizing practices. Transpraxis is aneffort to validate the act of resistance. The key totranspraxis is speech, words, grammar and how wetalk about (and then act upon) emancipation”(Arrigo, 2001, p. 220). Constitutive penology asks usto rethink the discursive structures within which wesituate our research on the penal question.

Constitutive penologists have suggested severaldirections and alternative notions for the develop-ment of social justice: social judo; replacementdiscourse; transpraxis; newsmaking criminology;narrative therapy; reconceptualizing crime as “harmsof reduction” and “harms of repression”; recoveringsubjects; an understanding of the social formationmore in terms of historically contingent and rela-tively stabilized configurations of coupled iterativeloops (constitutive inter-relational [COREL] sets),

which can be seen as the basis of contingent“structures” with effects; and forms of an empow-ered democracy in a political economy identifiedby Unger as “superliberalism.”

Social judo responds to the state’s continuedinvestment in violence to counter harms (calledcriminal justice), which thereby escalates the over-all prevalence of violence in society. It argues forcreative responses whereby those investors in harmhave their power turned against themselves. It is apolicy of undermining excessive investors in harms.In its maximal beneficial form, conflict is an occa-sion to reexamine given societal relations, institu-tions, and structures and their tendencies towardharm. Reconceptualizing harm in terms of “harmsof reduction,” whereby a person is reduced fromsome standing, and “harms of repression,” wherebya person is denied her or his ability to attain a posi-tion sought without it being at the expense of theother, provides a suggestion for an alternative wayof perceiving harm. It takes us beyond the restric-tions of the legalistic definition of crime.

The notion of COREL sets offers an alternativenonreductionist way of historically conceptualizingthe interconnectedness of prison and prison policywith the social formation, and for shedding lightin a political economy on the various forms ofexcessive investment to impose power on othersin the form of harms of reduction or repression.Constitutive penology, then, would make as its firstpriority the development of a social formation,which minimizes harms of reduction and repres-sion. They argue that it is in the very resolution ofconflicts that we need creative initiatives that trans-form the process whereby the conflict reproducesharm that sets in place new conflict. They believethat this cycle of conflict production must end.Constitutive penologists have advocated a multifac-eted approach to “criminal” justice policy. Their “rad-ical accusatory” policy implicates the entire societyfor its contributions to harm; their “reformistremedial” policy is much in accord with Unger’ssuperliberalism, which advocates an empowereddemocracy. A social justice approach would impli-cate the individual, community, and societal levelsconsistent with “transformative justice.”

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CONCLUSION

A genuinely alternative, replacement discoursewould envelop not just the declarations of policybut the ways its practitioners and policy makers dis-tinguish their reality from the totality and pointtoward ways these can be reintegrated. It wouldrequire a “bringing back in” of the underempha-sized, informal, unofficial, marginalized practices(the unspoken) that are part of the totality of theprison business. Only with such a comprehension ofthe totality and the contribution of these excludedparts to the reality-making process, argue constitu-tive penologists, is it possible to provide an alterna-tive understanding of the phenomena of crime andcrime control in our society. Only from such anunderstanding of the total constitutive process is itpossible to generate a replacement discourse thatbegins the deconstruction of penology, the correc-tion of corrections, and the ultimate reconstructionof penal policy that is its own demise.

—Dragan Milovanovic and Stuart Henry

See also Abolition; Activism; Deterrence Theory;Michel Foucault; Incapacitation Theory; Just DesertsTheory; Rehabilitation Theory; Resistance

Further Reading

Arrigo, B. (1999) (Ed.). Social justice/criminal justice.Belmont, CA: Wadsworth.

Arrigo, B. (2001). Praxis. In E. McLaughlin & Muncie J.(Eds.), The Sage dictionary of criminology (pp. 219–221).London: Sage.

Bosworth, M. (1999a). Agency and choice in women’s pris-ons: Toward a constitutive penology. In S. Henry &Milovanovic D. (Eds.). Constitutive criminology at work:Applications to crime and justice (pp. 205–226). Albany:State University of New York Press.

Bosworth, M. (1999b). Engendering resistance: Agency andpower in women’s prisons. Aldershot, UK: Ashgate.

Burnside, J., &. Baker, N. (Eds.). (1994). Relational justice:Repairing the breach. Winchester, UK: Waterside.

Duncan, M. (1996). Romantic outlaws, beloved prisons.New York: New York University Press.

Henry, S., & Milovanovic, D. (1991). Constitutive criminol-ogy: The maturation of critical theory. Criminology, 29,293–315.

Henry, S., & Milovanovic, D. (1996). Constitutive criminol-ogy: Beyond postmodernism. London: Sage.

Henry, S., & Milovanovic, D. (Eds.). (1999). Constitutivecriminology at work: Applications to crime and justice.Albany: State University of New York Press.

Matza, D. (1969). Becoming deviant. Englewood Cliffs, NJ:Prentice Hall.

Maurer, M. (1997). Intended and unintended consequences:State racial disparities in imprisonment. Washington, DC:Sentencing Project.

Milovanovic, D., & Henry, S. (1991). Constitutive penology.Social Justice, 18, 204–224.

Morris, R. (1994). A practical path to transformative justice.Toronto: Rittenhouse.

Morris, R. (2000). Stories of transformative justice. Toronto:Canadian Scholars Press.

Schehr, R., & Milovanovic, D. (1999). Conflict mediation andthe postmodern: Chaos, catastrophe, and psychoanalyticsemiotics. Social Justice, 26, 208–232.

Unger, R. (1987). False necessity. New York: CambridgeUniversity Press.

CONSULAR VISITS

Pursuant to the guidelines established by the ViennaConvention on Consular Relations (VCCR) in 1963,any criminal justice or correctional institution detain-ing a foreigner must notify him or her of the right tohave his or her consulate notified about the confine-ment. The United States, which ratified the conven-tion in 1969, considers the right to consularvisitation within correctional institutions so funda-mental that the U.S. State Department requires itfor all international detainees (other than thosesuspected of terrorism), even if an inmate’s countryof origin has not signed the VCCR. Following thedetainee’s request to have the consulate informed ofthe arrest and confinement, the custodial criminaljustice institution may permit a locally stationedconsul to visit the detainee in the institution withouthindering access or communication.

WHAT DOES A CONSUL DO?

The consul is an official representative of a particu-lar government who lives in a foreign country tohelp the home nation’s citizens within that countryand to represent the home country’s interests invarious affairs. Generally, consuls should provide

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