Gabrielle Ferrales

Gabrielle Ferrales

Domestic Violence Crime Control Policy and Practice: Implications for Arguments Concerning Penal Theory*

Gabrielle Ferrales

Ph.D. Candidate

Northwestern University

Department of Sociology

Doctoral Fellow American Bar Foundation

*This research was supported by a MacArthur Grant from Northwestern University. I would like to thank John Hagan, Robert Nelson, Heather Schoenfeld, and Steve Hoffman for their helpful comments. Earlier versions of the paper received the following awards: 2005 American Sociological Association’s Sociology of Law Section’s Best Graduate Student Paper Prize; 2005 Society for the Study of Social Problems Alfred R. Lindesmith Award Best Graduate Student Paper Prize and the Robert F. Winch Memorial Award, Northwestern University, Outstanding Second Year Paper.


Growing incarceration rates and a rapidly expanding criminal justice system have led a number of theorists to consider whether contemporary changes in penal practice signify the onset of later modernity, the death of modernity, or the advent of postmodernity. Several theorists have alleged that the rise of a postmodern penality is different in form than that which prevailed in the modern era. A number of criminologists, however, have argued against the concept of postmodern penality. They question the validity of the discourse of modernity/postmodernity as a theoretical framework in which to locate an understanding of contemporary penal change. In David Garland’s most recent work, he has further fueled this longstanding debate by arguing that recent changes in penal practice must be conceived as indicative of the period of late modernity. There have been no empirical studies to assess the merit of his new conception of crime control. Using ethnographic data from a district attorney’s office, this paper examines criminal justice personnel at the micro-level in order to assess both the strengths and limitations of Garland’s findings and to provide further insight in constructing an analytical framework for understanding contemporary changes in penal practice. This paper argues that while a postmodern/modern theoretical framework may account for broad trends at the abstract macro-level, analysis of penal development must account for policy implementation at the local level and the power of state workers to resist and reconfigure crime control policy to meet their needs.


Growing prison populations, a rapidly expanding criminal justice system, and the resurrection of punitive practices have led some legal scholars and social control theorists to argue that state crime control efforts are in the midst of an important transformation. The primary claim is that these efforts are shifting away from rehabilitation and prevention and towards simply managing the harm that crime inflicts on law-abiding citizens through new strategies and goals. For some, these contemporary changes in penal practice indicate a move away from the modern, Enlightenment hopes that promoted the notion of the state resolving the major social ills of contemporary society and the rise of a postmodern penality. These scholars argue that many western democracies are ‘postmodern’ in their efforts to control crime because they promote policy that is devoid of broad social goals and is not grounded in any larger narrative of purpose (Feeley and Simon 1992, 1994; Simon 1993; Pratt 2000; Hallsworth 2002). For others theorists, it indicates the onset of late modernity and a move away from state responsibility for crime control and a shift towards community responsibility for addressing crime, its causes and effects (see Garland 1996, 2001; Lucken 1998; O’Malley 1999).

Developments such as expanding prison populations and the return of punitively orientated ostentatious forms of punishment pose interesting questions about the contemporary direction of penal change and how to provide a theoretically satisfactory account for these shifts. In Garland’s most recent publication, Culture of Control: Crime and Social Order in Contemporary Society, he provides a framework in which to locate an understanding of contemporary penal development. His findings further fuel the long-standing debate about whether recent transformations in penal policy signify the onset of late modernity, the death of modernity, or the advent of postmodernity. Garland argues that “the patterns of risk, insecurities and control problems to which American and British governments, corporations, and citizens have been responding are those typically generated by the social, economic, and cultural arrangements of late modernity” (Garland 2001). To trace these developments and construct his explanatory framework, Garland uses primarily secondary sources. To date, there have been no empirical studies to assess the strengths and limitations of Garland’s conception of crime control. Moreover, past achievements in applying a postmodern framework to the study of punishment have been speculative or empirically narrow at best (see e.g., Arrigo 1995; Cohen 1990; Einstadter and Henry 1995; Lucken 1998 (examines practices in the setting of a probation office)). Conclusions about contemporary penality have not taken into account what happens at the ground level in actual penal practice. As a result, a question that still exists is do postmodern or modern conceptions of punishment adequately represent contemporary penality?

This paper addresses this question by ethnographically examining a site where penal policy is put into penal practice: a district attorney’s office. Specifically, I explore how prosecutors in a battery/domestic violence unit respond to recent legislative reforms that purport to limit their discretion. I demonstrate how this group of prosecuting attorneys has adopted modes of resistance to effectively counter this legislation. These modes of resistance include: defining deviance up and/or down depending on the underlying facts of the case; finding a legal loophole within the statute which permits discretion; and adopting working ideologies which support non-compliance with the statute. From this analysis, I argue that neither Garland’s new penology conceptualization nor the postmodern conception fully address penal practice on the front lines where crime control workers implement policy into action. These theorists’ macro-level interpretations of penal development are insufficiently attentive to criminal justice practice on the local level, particularly to the power of state workers to resist and reconfigure crime control policy and practice to meet their needs. Moreover, both perspectives fail to acknowledge the persistence in the rehabilitative ideal among penal practitioners. The present work reflects an effort to fill this gap by analyzing implementation of state policy at the local level.

To develop my argument, I first briefly present Garland’s analytical framework and situate this within the broader context of other social control theorists. Second, I describe the recent domestic violence legislation, paying particular attention to how the formulation of this law on the state level conforms, to some degree, to Garland’s penological conception. Third, I discuss my data sources and procedures. Fourth, I present my findings detailing the prosecutor’s response to this legislation and the modes of resistance. Finally, I present a detailed analysis of these findings and conclude this paper with directions for future research that might better articulate an analytical framework in which to locate an understanding of contemporary penal development.

Frameworks for Understanding Penal Change: Modern/Postmodern Penology

Malcom Feeley and Jonathan Simon have most extensively articulated the claim that contemporary changes in penal practice indicate the rise of postmodern penology (Feeley and Simon 1992, 1994; see also Lucken 1998; Hallsworth 2002). These theorists argue that the modern-postmodern distinction is both a legitimate and valuable framework within which to locate recent developments in penal practice. The core of the postmodern claim is that for much of the last century, the emphasis of criminal justice was to rehabilitate the offender (Simon 1993). Now, however, punishment is no longer connected to any broader social theory about deviance, rehabilitation and reintegration but, rather, is rooted in an acceptance of crime as a ‘fact of everyday life’ (Garland 1996, 2001).

In their conceptualization of the postmodern framework, Feeley and Simon (1992) argue that over the past few decades, a systems analysis approach to danger management has come to dominate criminal justice administration. Risk management treats populations that are considered “dangerous” (inner city youth, racial minorities, and the underclass) and directs criminal justice policy to monitor these populations. According to Feeley and Simon, there are three distinct elements to postmodern penology: First, there is a new discourse that emphasizes risk and probability as applied to a criminal population rather than diagnosis or moralistic judgments of individual wrongdoers. Second, this new penology is reflected in objectives transformed from an earlier emphasis on punishing or normalizing deviants to a current focus on identifying and managing classes of criminals. Finally, they argue that this shift in objectives has triggered the development of a new set of techniques for carrying out the goals of classifying and controlling aggregate risk (Lynch 1998). At the root of what distinguishes modern from postmodern penology is the abandonment of the individual in defining and managing criminal populations. The individual cannot be reformed or treated. The postmodern penological strategies are not concerned with why criminals commit their illegal acts but rather with how to most efficiently manage the level of reoffending risk they pose (Lynch 1998).

While theorists, such as Feeley and Simon, characterize contemporary shifts in penal practice as indicative of the beginning of a distinct postmodern penal era, other scholars maintain that these changes cannot be distinguished from modern-era criminal justice practices. (see e.g., Lemert 1993; Sutton 1995; McCorkle and Crank 1996; Lucken 1998; O’Malley 1999; Garland 1995, 2001). Four rationales for rejecting the postmodern framework include: (1) the presence of distinctively modern penal elements within the era of an alleged postmodern penal order disconfirms the idea that there has been a decisive break with a modern penal period (Garland 1995); (2) allegedly postmodern penal practices can be observed within the era of modernity which then calls into question the status of their postmodern character. Risk analysis and the management of danger, for example, cannot be viewed as postmodern as these practices can be traced back to the 19th century where they were used by imperial states to govern subjugated people (Lynch 1998); (3) the theoretical terrain occupied by those who deploy a modern/postmodern theoretical framework operates at such a high degree of abstraction from the object it studies that it lacks all explanatory power (Lucken 1998; O’Malley 1999) and finally, the problem with those who deploy the postmodern framework is that they often mistake rhetoric for reality and fail consequently to attend to the stated ‘aims, activities and values of penal actors’ and their definitions (Hallsworth 2002).

Garland’s Analytic Framework: Late Modernity

In Garland’s most recent publication, Culture of Control, he attempts to provide an analytical account of social and penal change in the closing decades of the 20th century. Using a macro-level approach, Garland seeks to identify the broad themes, trends, and unifying principles of what he refers to as the ‘crime control field’ and argues that transformations in the field are indicative of the period of late modernity (Garland 2001). For Garland, late modernity is “a historical phase in the process of modernization”, one that shows “no sign of letting up” (Garland 2001). He argues that the changes in social organization associated with late modernity have had important consequences for crime, welfare, and the experience of daily life, all of which undermined support for the penal-welfare state. In particular, these changes have increased criminal behavior, weakened the state’s response to it, and gave rise to ‘ontological insecurity.’ These changes combined with the sharply increasing crime rates in the 1970s and 1980s have created a culture where the legitimacy of criminal justice institutions has been called into question.

According to Garland, this cultural climate “prompt[ed] the emergence of new forms of criminology, a new crime control agenda, and a new understanding of the relation between state and non-state activities in the crime control field” (Garland 2001: 62). These developments significantly altered the framework in which criminal justice policies were formulated and implemented, creating practical and ideological dilemmas for actors located in the institutional arena. He argues that the modernizing process has significantly impacted the standard working practices of state crime control agents and provoked dissension among penal practitioners. The changes of late modernity brought with it shifting hierarchies, the alteration of standard working practices, and the challenging of professional expertise. Garland notes, “the constant flux and febrile energy of this transition has left an older generation of criminal justice personnel exhausted and disillusioned, cast adrift from the landmark ideal and exemplars around which they were trained” (Garland 2001: 5). He further explicates:

Within the brief time it takes to progress from basic training to mid-career, a whole generation of practitioners - probation officers, prison officials, prosecutors, judges, police officers, and criminological researchers- have looked on while their professional world was turned upside down. Hierarchies shifted precariously; settled routines were pulled apart; objectives and priorities were reformulated; standard working practices were altered; and professional expertise was subjected to challenge and viewed with increasing skepticism. The rapid emergence of new ways of thinking and acting on crime, and the concomitant discrediting of older assumptions and professional orientations, ensured that many penal practitioners and academics lived through the 1980s and 1990s with a chronic sense of crisis, and professional anomie (Garland 2001: 4).

The habitus of many trained practitioners “with their ingrained dispositions and working ideologies, the standard orientations that ‘go without saying’ have been undermined and rendered ineffective” (Garland 2001).

While Garland has chosen to focus on a whole range of social responses to crime in order to identify some of the broad organizing principles that structure the contemporary ways of thinking about crime control, there are costs to analyzing at this high level of abstraction. Similar to the critique lodged against the postmodern framework, there is a lack of detailed analysis that is able to explore the contours and complexities of the various developments Garland identifies. For example, Garland offers little evidence to illustrate exactly how the standard working practices of criminal justice personnel were altered. Moreover, there is little discussion of conflict or resistance by criminal justice personnel. He also initially frames the modernizing process “as a sudden and startling reversal of a settled historical pattern” and an alarming disintegration of the conceptual framework and common assumptions that gave institutions meaning (Garland 2001: 3-4). This claim, however, may neglect the gaps between discourses and practices. Significant disparities often exist between the rhetoric of crime control policy and practice. Moreover, similar to the postmodern theorists, Garland claims that rehabilitation has faded from contemporary penal practice. However, as this case study will demonstrate, penal agent discourse and action remain grounded in rehabilitative objectives. Finally, Garland downplays the role of gender, race, class, sexual identity, cultural background, and religious affiliation in shaping contemporary strategies of control. This case study addresses these concerns by examining criminal justice personnel at the micro-level in order to assess both the strengths and limitations of Garland’s findings and to provide further insight in constructing an analytical framework for understanding contemporary changes in penal practice.

Why Study Prosecuting Attorneys?

The role of the front-line penal agent must be considered when analyzing modern penal trends. In the case of the district attorney’s office, prosecutors are situated in the most direct contact point between penal discourse and practice. Their interpretation of legislative policy and its function directly informs how discourse is carried out into action. They are one of the “primary bearers of penal culture” (Garland 1990:210), who transform cultural conceptions “about penal practice into penal action, basing the transformation on an amalgam of training and professional and institutional socialization, as well as exposure to the broader cultural demands” (Lynch 1998).

There is evidence to suggest that macro-level explanations of institutions do not always adequately and accurately account for what happens at the lower levels in criminal justice practice. Moreover, examining the implementation of recent domestic violence legislation by criminal justice agents is a fruitful line of inquiry in that it reflects, on a prima facie basis, several of the transformations Garland identifies in penal policy. Garland argues that the period of later modernity is marked by an unprecedented amount of legislative activity in crime control policy and an increasing skepticism for professional expertise. Recent domestic violence legislation offers an excellent illustration of this phenomenon. There has been an increased amount of legislative activity involving how to address domestic violence offenses. First, there were a number of mandatory arrest statutes passed limiting police discretion in these cases. Next, state legislators passed laws limiting prosecutorial discretion. Both exemplify transformations in penal policy where professional discretion has been subjected to regulation. Moreover, because Garland is silent as to the changing contribution of gender to recent crime control developments, analyzing how prosecutors implement domestic violence legislation is essential. The women’s movement has had a profound impact, not only on the construction of crime, but also on increasing demands for protection from violence and for encouraging the development of more effective control mechanisms. Garland’s analytical framework fails to take this into account.

Domestic Violence Statute:

During the 1970s, the criminal justice system was attacked by feminist groups for its lenient treatment of battery domestic violence perpetrators. Critics claimed that batterers were not being arrested as often, prosecuted as vigorously, or sentenced as severely as other violent criminals (see e.g., Parnas 1973). Criminal justice officials were accused of ignoring these cases or processing them as quickly as possible through the system without regard to the safety of the victims. In response to these concerns, state legislatures increasingly passed statutes mandating criminal justice officials to pursue domestic violence offenders more aggressively (Dugan at al. 2003). No-drop or evidence-based legislation, for example, was enacted in many states requiring the prosecution to proceed on a domestic violence case based upon considerations of evidence, seriousness of the crime, and defendant’s prior record regardless of the victim’s desire (Mills 1998). This policy was originally developed by the San Diego City Attorney’s Office and has been subsequently adopted in some form by two-thirds of prosecutors’ offices nationwide (Rebovich 1996).