Psychology and the Limits to Prison Pain
Confronting the Coming Crisis in Eighth Amendment Law

Reproduced with permission from the author

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Published in Psychology, Public Policy, and Law, 3, 499-588 (1997).

Psychology and the Limits to Prison Pain:

Confronting the Coming Crisis in Eighth Amendment Law

Craig Haney*

University of CaliforniaSanta Cruz

Department of Psychology, University of CaliforniaSanta CruzCA95064. Email:

A suitable amount of pain is not a question of utility, of crime control, of what works. It is a question of standards based on values. It is a cultural question.

-Nils Christiey


Prison policy represents a compromise between competing sets of human values-concerns for social order and respect for humane justice. On the one hand, legal theorists agree that "[t]he criminal sanction is the paradigm case of the controlled use of power within a society."[1] Nowhere in our society is more forceful and sustained control over persons exercised than in its prisons-control applied in the name of achieving and preserving civil order. Indeed, some have argued that the inherent violence of prison colors the entire legal system that regularly resorts to it.[2] On the other hand, commentators as diverse as Dostoevsky and Churchill have observed that the real measure of civilization in any society can be found in the way it treats its most unfortunate citizens-its prisoners.[3]Historically, popular movements, citizens' organizations, professional groups, and political factions have argued, lobbied, and taken action against punishments that were perceived as draconian and repressive. Thus, a society's conception of humane justice constrains what may be done legally to persons in the pursuit of order. These two very different perspectives establish the parameters for a centuries-old debate over the nature and legitimacy of legal punishment: What is the proper relationship between necessary levels of social control and minimal standards of humane treatment?

In recent years in the United States the terms of that debate have become wildly lopsided. Indeed, it could be argued that-for the first time in the two hundred year history of imprisonment in this country-the debate has been virtually suspended. The political mandate for social control has become so absolute that no countervailing values or interests are interposed to balance or leaven the pain that may be inflicted in the pursuit of civil order. The "rage to punish"[4] has been indulged so completely that it threatens to override any competing concern for humane justice. We have entered the "mean season" of corrections in which penal philosophy amounts to little more than devising "creative strategies to make offenders suffer."[5]

Like many other scholars,[6] I, too, lament the recent passing of humane values from public, political, and-to a certain extent-legal discussions of the virtues of punitive social control. However, I see in contemporary psychological theory the potential to develop a reasoned analysis of what, in an earlier work, Nils Christie called the "limits to pain."[7] I will argue in this article that the profession of psychology bears a degree of responsibility for the current crisis in American prison policy. Historically, we have contributed significantly to the intellectual framework upon which modern corrections is built.Indeed, Michel Foucault argued that the conceptual systems of social science owed as much to the development of the modern penal form as vice versa.[8]We have said little and done less while our nation's penal system has been used in a terribly inhumane, exceedingly expensive, and in the long run, I believe, very dangerous political tug-of-war over who can lock up the most people for the longest amount time.[9] History will not judge this period very charitably. Neither will it judge kindly those of us who early influenced (perhaps quite inadvertently) the direction of our nation's crime policy and then simply stood by while the political powers that be twisted this course of action beyond any rational limits. What Cullen has recently said about criminologists applies with equal if not greater force to psychologists (albeit in somewhat different ways):

In recent decades-as authors and as consultants-we have played a large role in delegitimizing the rehabilitative ideal and in providing the intellectual justification and technology for managing penal harm. The challenge now is to help fashion an alternative plausible narrative that can move us beyond harm as the organizing principle of corrections.[10]

Yet, contemporary psychological theory has the capacity to both rekindle a debate about humane limits to pain and provide a blueprint for creating an intelligent policy of crime control that does not sacrifice correctional justice. It is time for the discipline of psychology both to assume responsibility for its historical connection to the shape and direction of past correctional policies and to play a more significant role in developing pathways out of the current crisis.

Prison is a supremely individualistic response to the social problem of crime. It is a clear reflection of a longstanding belief in our culture that crime should be addressed almost exclusively by identifying and incarcerating those responsible for committing it.[11] Yet, modern psychological theory has added a new dimension to contemporary accounts of social behavior that places our dependency upon traditional forms of imprisonment in a fundamentally different light. In Ross and Nisbett's words: "[W]hat has been demonstrated through a host of celebrated laboratory and field studies is that manipulations of the immediate social situation can overwhelm in importance the type of individual differences in personal traits or dispositions that people normally think of as being determinative of social behavior."[12] Situational structure is now recognized as exerting a powerful influence over behavior in a range of social settings.[13] Psychologists also have demonstrated that the cognitive representation of situations exercises an important effect on behavioral consistency.[14] Contemporary psychological research has provided empirical documentation of the powerful influence of situational characteristics on various forms of psychopathology, including depression,[15] and on behavior as diverse as altruism,[16] coping,[17] cheating,[18] and a police officer's decision to take someone into custody.[19] In a more directly relevant way, we also know that variations in social setting and context play an extremely important causal role in the incidence of criminality,[20] aggression and violence,[21] homicide,[22] and even torture.[23] Moreover, numerous studies have now shown that exposure to a variety of background situations and developmental contexts (like poverty and parental maltreatment) constitutes a significant risk factor in delinquency and adult criminal behavior.[24] Similarly, situational analyses of misconduct and violent behavior in prisons themselves underscore the importance of social context in influencing behavior in institutional settings.[25] Although most contemporary social scientific analyses of social behavior can be described as interactional in nature,[26] situation, context, and structure have attained empirical and theoretical significance that they did not have several decades ago. Indeed, the problems of crime and violence-formerly viewed in almost exclusively individualistic terms-are now understood through multi-level analyses that grant equal if not primary significance to situational, community, and structural variables.[27]

Modern psychological theory thus contains several powerful lessons for contemporary criminal justice and penal policy, virtually all of which have been overlooked, ignored, or disregarded in recent trends toward ever increasing levels of imprisonment: 1) That exclusively individual-centered approaches to crime control (like imprisonment) are self-limiting and doomed to failure if they do not simultaneously address criminogenic situational and contextual factors; 2) That prison environments are themselves potentially damaging situations whose negative psychological effects must be taken seriously, carefully evaluated, purposefully regulated and controlled and, when appropriate, changed or eliminated; 3) That programs of prisoner change cannot ignore situations and social conditions that prevail after release if they have any hope of sustaining whatever positive gains are achieved during periods of imprisonment; and 4) That longterm legacies of exposure to powerful and destructive situations, contexts, and structures can mean that prisons themselves may act as criminogenic agents-in both their primary effects on prisoners and secondary effects on the lives of persons connected to them-serving to increase the amount of crime that occurs within a society. All of these implications argue in favor of more critically and more realistically evaluating the nature and effect of imprisonment and developing psychologically-informed limits to the amount of prison pain we are willing to inflict in the name of social control.

In attempting to formulate some humane limits to legal pain I will explore the interplay between modern psychological theory, contemporary conditions of confinement, and definitions of cruel and unusual punishment. By providing a snapshot of the "corrections crisis" that now plagues the nation, I will also examine the more immediate context that gives these issues pressing, contemporary significance. This crisis threatens to bankrupt state and municipal governments, doom generations of citizens to lives at the legal and economic margins of our society, and thwart the development of any effective and humane national policy of crime control. The connection of the discipline of psychology to the current corrections crisis has an historical component to it and extends to the role of psychology-both as an ideology and a professional discipline-in the very development of the institution of prison. Although few psychologists acknowledge or reflect upon this connection, the discipline of psychology has been deeply involved in the creation and transformation of the prison form. This historical legacy carries both a warning about repeating the sins of the past and a mandate that appropriately implicates us in future solutions.

More recently, dramatic shifts have occurred in the public's conception of the purpose of legal punishment that have altered the nature of imprisonment and its connection to the discipline of psychology. These include the emergence of a revisionist view of rehabilitation, the increased prominence of "just deserts" in penal philosophy, and a recently changed public view of the nature of criminality. Not surprisingly, changes in the way in which our society justifies the legal pain it inflicts have had a direct impact on the nature of the institution charged with the responsibility of delivering that pain-prison. In this regard, I will review some of the empirical literature on prison conditions and the psychological consequences of imprisonment, giving special attention to the impact of overcrowding. In the next section of the article I will examine the general question of legal regulation of imprisonment-the attempt to use law to set legal "limits to pain." I will discuss what I believe to be largely outmoded conceptions of the nature of prison life that continue to haunt the primary instrument by which legal punishment is regulated in the United States-8th Amendment law. Finally, I will attempt to extend the parameters of the debate about effective strategies of crime control and humane limits to penal pain by proposing alternatives to current models of incarceration that are premised on contemporary psychological theory.

The combination of empirical, legal, and political developments that I describe throughout this paper raise the specter of a coming crisis in 8th Amendment law, one whose implications are troublesome and far reaching. It derives from the fact that prison pain is not only widespread but has become the raison d'être of American corrections. The United States Supreme Court's methodology for defining unconstitutional cruelty-whether it fails to serve any legitimate penological purpose, on the one hand, and whether the is evidence of widespread legislative or public repudiation, on the other-breaks down when pain is made the purpose of imprisonment, when legislatures owe their continued electoral viability to increasing levels of prison pain, and when the public has been kept uninformed about the nature and longterm consequences of this state-sanctioned cruelty.[28] Thus, widespread correctional harm is no longer "unusual," but neither is it regarded as "cruel" by popular constituencies. That is, the public not only has been kept ignorant of the harm that prisons can do but they have been convinced that cruel treatment is a carefully considered, effective, and perhaps even the only viable strategy to be followed in crime control. This shift, combined with the politicizing of the question of pain by the courts-many of whom have arguably abdicated their regulatory function in deference to explicitly popular, political forces-means that there are few if any limits on what can be done in the name of "corrections," even as we have abandoned any hope of ever correcting anything. I argue that insights derived from the discipline of psychology can help to avoid this coming crisis.

Article Contents

As you read the sections of the article, please use your browser's BACK button to return to this content list to continue to the next sections.

The State of the Prisons

Race and the Rage to Punish



Nothing Works: Prison Policy By Default

The Rise of Just Deserts

Crime as Biology


Measuring Prison Harm

Coping with the Stress of Imprisonment

Overcrowding: The Emergence of a Destructive Correctional Norm

Maintaining Control Through Force and Intimidation

The Prison Gang Threat


The Evolution of the 8th Amendment

Modern Eighth Amendment Prison Doctrine

Proportionality and the Disregard of Context



[1] Nils Christie, Crime Control as Industry: Towards Gulags, Western Style?London: Routledge (1993), at 183.
[1] Herbert Packer, The Limits of the Criminal SanctionPalo AltoCAStanfordUniversity Press (1972).
[2] Cf. Robert Cover, Violence and the Word, 95 Yale Law Journal 1601 (1986): "The experience of the prisoner is, from the outset, an experience of being violently dominated, and it is colored from the beginning by the fear of being violently treated" (at 1608, footnote omitted).
[3] As Home Secretary in 1910, Winston Churchill observed that: "The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country." Elkin, W., The English Penal System.London: Penguin (1957), at 277. Dostoevsky wrote that: "A society which looks upon such things [as the harsh punishment of its citizen] with an indifferent eye is already infected to the marrow." Dostoevsky, F., The House of the DeadLondon: Dent (1962), at 194. Cf. Coppedge v. United States, 369 U.S. 438, 449 (1962): "The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged."
[4] Lois Forer, A Rage to Punish: The Unintended Consequences of Mandatory Sentencing.New York: W. W. Norton (1994).
[5] Cullen, F., Assessing the Penal Harm Movement, 32 Journal of Research in Crime and Delinquency 338, 340(1995).
[6] For example, see Todd Clear, Harm in American Penology: Offenders. Victims. and their Communities.AlbanyStateUniversity of New York Press (1994); John Irwin and James Austin, It's About Time: America's Imprisonment Binge.BelmontCAWadsworth (1994); Michael Tonry, Malign Neglect: Race, Crime, and Punishment in AmericaNew YorkOxfordUniversity Press (1995).
[7] Nils Christie, Limits to PainOxford: Martin Robertson (1982).
[8] See Michel Foucault, Discipline and Punish: The Birth of the Prison. New York: Random House (1977).
[9]There have been several notable exceptions to this generalization. Stanley Brodsky, Carl Clements, and Ray Fowler not only began the Center for Correctional Psychology at the University of Alabama but-although the Center itself did not survive subsequent changes in funding and political climates-also continued to write about prison issues from a critically insightful perspective. See, for example: Brodsky, Stanley L., Families and Friends of Men in Prison : The Uncertain RelationshipLexingtonMALexington Books (1975); Brodsky, Stanley L., Correctional Change and the Social Scientist: A Case Study, 10 Journal of Community Psychology 128-132 (1982); Brodsky, Stanley L.; Miller, Kent S., An Alabama Prison Experience. In George W. Albee, Justin M. Joffe, Linda A. Dusenbury (Eds.), Prevention, Powerlessness, and Politics: Readings on Social Change (pp. 127-136). Newbury Park, CA: Sage (1988); Brodsky, Stanley L.; Scogin, Forrest R., Inmates in Protective Custody: First Data on Emotional Effects, 1 Forensic Reports 267-280 (1988); Carl Clements, Crowded Prisons: A Review of Psychological and Environmental Effects, 3 Law and Human Behavior 217-225 (1979); Clements, Carl B., Towards an Objective Approach to Offender Classification, 9 Law & Psychology Review 45-55 (1985); Clements, Carl B., Psychologists in Adult Correctional Institutions: Getting Off the Treadmill. In Edward K. Morris, Curtis J. Braukmann (Eds.), Behavioral Approaches to Crime and Delinquency: A Handbook of Application, Research, and Concepts (pp. 521-541). New York: Plenum (1987); Clements, Carl B., Delinquency Prevention and Treatment: A Community-Centered Perspective, 15 Criminal Justice & Behavior 286-305 (1988); Fowler, Raymond D.; Brodsky, Stanley L., Development of a Correctional-Clinical Psychology Program, 9 Professional Psychology 440-447 (1978); Fowler, Raymond D., Assessment for Decision in a Correctional Setting. In Donald R. Peterson, Daniel B. Fishman (Eds.), Assessment For Decision. Rutgers Symposia on Applied Psychology (pp. 214-239). Vol. 1. New BrunswickNJ:RutgersUniversity Press (1987). In addition, in a long and truly distinguished career, Hans Toch has continued to focus critically on the psychological costs and consequences of imprisonment. See, for example, Hans Toch, Men in Crisis : Human Breakdowns in PrisonChicagoIL: Aldine (1975); Hans Toch, Living in Prison : The Ecology of SurvivalNew York : Free Press (1977); Robert Johnson and Hans Toch (Eds.), The Pains of ImprisonmentBeverly HillsCA: Sage (1982); Hans Toch and Kenneth Adams, The Disturbed Violent OffenderNew Haven, CN : YaleUniversity Press (1989). In our own way, Philip Zimbardo and I have also tried to participate in this critical dialogue about prison conditions. For example, see: Haney, Craig, Banks, William, & Zimbardo, Philip, Interpersonal Dynamics in a Simulated Prison, 1 International Journal of Criminology and Penology 69 (1973); Haney, Craig & Zimbardo, Philip, The Socialization into Criminality: On Becoming a Prisoner and a Guard. In J. Tapp and F. Levine (Eds.) (1977). Law, Justice, and the Individual in Society:Psychological and Legal Issues (pp. 198-223). New York: Holt, Rinehart, and Winston (1977); Zimbardo,Philip & Haney, Craig (1978). Prison Behavior. In Benjamin Wolman (Ed.), International Encyclopedia of Psychiatry, Psychology, and Neurology, Vol. 4 (pp. 52-53). New York: Human Sciences Press (1978).
But there have been few others. Moreover, there has been almost no commentary addressing the most recent (and arguably most problematic) period in the current crisis in American corrections. Thus, despite the early focus of the discipline on criminal justice issues, and the absolute centrality of the institution of prison to the criminal justice system generally, imprisonment continues to be one of the most under-studied topics in the entire field of psychology and law.
[10] Cullen, supra note 6, at 352.
[11]Craig Haney, Criminal Justice and the Nineteenth-Century Paradigm: The Triumph of Psychological Individualism in the "Formative Era," 6 Law and Human Behavior 191 (1982).
[12]Lee Ross and Richard Nisbett, The Person and the Situation: Perspectives of SocialPsychologyNew York: McGraw-Hill (1991), at xiv. See, also, Walter Mischel, Personality and AssessmentNew York: Wiley (1968).
[13]E.g., Roy Baumeister and Dianne Tice, Toward a Theory of Situational Structure, 17 Environment & Behavior 147-192 (1985); Adrian Furnham & Michael Argyle (Eds.), The Psychology of Social Situations: Selected ReadingsOxford, EN: Pergamon (1981); David Magnusson (Ed.), Toward a Psychology of Situations: An Interactional PerspectiveHillsdaleNJLawrence Erlbaum (1981).
[14]E.g., Barbara Krahe, Similar Perceptions, Similar Reactions: An Idiographic Approach to Cross-Situational Coherence, 20 Journal of Research in Personality 349-361 (1986).
[15]E.g., Constance Hammen, Vulnerability to Depression: Personal, Situational and Family Aspects. In Rick E. Ingram (Ed.) Contemporary Psychological Approaches to Depression: Theory, Research, and Treatment (pp. 59-69). New York: Plenum Press (1990).
[16]E.g., John Darley and Daniel Batson, From Jerusalem to Jericho: A Study of Situational and Dispositional Variables in Helping Behavior, 27 Journal of Personality and Social Psychology 100-119 (1973); Charles Holahan, Effects of Urban Size and Heterogeneity on Judged Appropriateness of Altruistic Responses: Situational vs. Subject Variables, 40 Social Psychology Quarterly 378-382 (1977).
[17]E.g., Robert McCrae, Situational Determinants of Coping. In Bruce N. Carpenter, (Ed.), Personal Coping: Theory, Research, and Application (pp. 65-76). WestportCT: Praeger/Greenwood (1992).
[18]E.g., James Leming, Cheating Behavior, Situational Influence, and Moral Development, 71 Journal of Educational Research 214-217 (1978).
[19]E.g., Robert Worden, Situational and Attitudinal Explanations of Police Behavior: A Theoretical Reappraisal and Empirical Assessment, 23 Law & Society Review 667-711 (1989).
[20]E.g., Anthony Mawson, Situational Criminality: A Model of Stress-Induced Crime.New York: Praeger (1987): "[T]ransient criminality is largely the result of stressful events combined with the simultaneous absence or destruction of social bonds. The suggestion is that transient criminality is due more to environmental influences than enduring characteristics of the person" (at 20). See, also: R. V. Clarke, Delinquency, Environment and Intervention, 26 Journal of Child Psychology & Psychiatry & Allied Disciplines 505-523 (1985); Bill McCarthy and John Hagan, Mean Streets: The Theoretical Significance of Situational Delinquency Among Homeless Youths, 98 American Journal of Sociology 597-627 (1992); Bill McCarthy and John Hagan, Getting into Street Crime: The Structure and Process of Criminal Embeddedness, 24 Social Science Research 63-95 (1995); Randall Smith and William Smith, Patterns of Delinquent Careers: An Assessment of Three Perspectives, 13 Social Science Research 129-158 (1984); Alan Vaux and Mary Ruggiero, Stressful Life Change and Delinquent Behavior, 11 American Journal of Community Psychology 169-183 (1983). Also, see note 354 infra, and references cited therein.
[21]E.g., Leonard Berkowitz, Situational Influences on Aggression. In Jo Groebel, Robert A. Hinde (Eds.), Aggression and War: Their Biological and Social Bases (pp. 91-100). Cambridge: Cambridge University Press (1989); Richard Felson, Henry Steadman, Situational Factors in Disputes Leading to Criminal Violence, 21 Criminology: An Interdisciplinary Journal 59-74 (1983); Theodore Gessner, Jennifer O'Connor, Michael Mumford, Timothy Clifton, et al., Situational Influences on Destructive Acts, 13 Current Psychology: Developmental, Learning, Personality, Social 303-325 (1995); Steven Prentice-Dunn and Ronald Rogers, Effects of Deindividuating Situational Cues and Aggressive Models on Subjective Deindividuation and Aggression, 39 Journal of Personality & Social Psychology 104-113 (1980); Ira Sommers and Deborah Baskin, The Situational Context of Violent Female Offending, 30 Journal of Research in Crime & Delinquency 136-162 (1993); and Henry Steadman, A Situational Approach to Violence, 5 International Journal of Law & Psychiatry 171-186 (1982).
[22]E.g., Keith Harries, The Ecology of Homicide and Assault: BaltimoreCity and County, 1989-91, 4 Studies on Crime & Crime Prevention 44-60 (1995).
[23]E.g., Herbert Kelman, The Social Context of Torture: Policy Process and Authority Structure. In Ronald D. Crelinsten and Alex P. Schmid (Eds.), The Politics of Pain: Torturers and Their Masters (pp. 19-34). Series on State Violence, State Terrorism, and Human Rights. BoulderCO: Westview Press (1995).
[24]E.g., Deborah Denno, Victim, Offender, and Situational Characteristics of Violent Crime, 77 Journal of Criminal Law & Criminology 1142-1158 (1986); David Farrington, Implications of Criminal Career Research for the Prevention of Offending, 13 Journal of Adolescence 93-113 (1990); Robert Gordon, Issues in the Ecological Study of Delinquency, 32 American Sociological Review 927-944 (1967); Murray Straus, Discipline and Deviance: Physical Punishment of Children and Violence and Other Crime in Adulthood, 38 Social Problems 133-154 (1991). See, also, note 353 infra, and references cited therein.
[25] E.g., Anthony Bottoms, William Hay, and J. Richard Sparks, Situational and Social Approaches to the Prevention of Disorder in Long-Term Prisons. In Timothy J. Flanagan (Ed.), Long-Term Imprisonment: Policy, Science, and Correctional Practice (pp. 186-196). Thousand Oaks, CA: Sage Publications (1995); Frederick Deroches, Anomie: Two Theories of Prison Riots, 25 Canadian Journal of Criminology 173-190 (1983); Adolf Pfefferbaum and Norman Dishotsky, Racial Intolerance in a Correctional Institution: An Ecological View, 138 American Journal of Psychiatry 1057-1062 (1981); Pamela Steinke, Using Situational Factors to Predict Types of Prison Violence, 17 Journal of Offender Rehabilitation 119-132 (1991). 
[26]E.g., Albert Bandura, The Self System in Reciprocal Determinism, 33 American Psychologist 344-358 (1978); Marshal Duke, The Situational Stream Hypothesis: A Unifying View of Behavior with Special Empahsis on Adaptive and Maladaptive Personality Patterns, 21 Journal of Research in Personality 239-263 (1987); Bo Ekehammar, Interactionism in Personality From a Historical Perspective, 81 Psychological Bulletin 1026-1048 (1974); Marianthi Georgoudi and Ralph Rosnow, Notes Toward a Contextualist Understanding of Social Psychology, Personality and Social Psychology Bulletin 5-22 (1985); Walter Mischel, On the Interface of Cognition and Personality: Beyond the Person-Situation Debate, 34 American Psychologist 740-754 (1979); Joseph Veroff, Contextual Determinants of Personality, 9 Personality and Social Psychology Bulletin 331-343 (1983).
[27]E.g., John Hepburn, Violent Behavior in Interpersonal Relationships, 14 Sociological Quarterly 419-429 (1973); McEwan, A. W.; Knowles, C., Delinquent Personality Types and the Situational Contexts of Their Crimes, 5 Personality & Individual Differences 339-344 (1984); Robert Sampson and Janet Lauritsen, Violent Victimization and Offending: Individual-, Situational-, and Community-Level Risk Factors. In Albert J. Reiss Jr., Jeffrey A. Roth (Eds.) Understanding and Preventing Violence, Vol. 3: Social Influences (pp. 1-114). WashingtonDC: National Research Council. National Academy Press (1994); Hans Toch, The Catalytic Situation in the Violence Equation, 15 Journal of Applied Social Psychology 105-123 (1985); Ernst A. Wenk, Robert L. Emrich, Assaultive Youth: An Exploratory Study of the Assaultive Experience and Assaultive Potential of California Youth Authority Wards, 9 Journal of Research in Crime & Delinquency 171-196 (1972); Kevin Wright, The Violent and Victimized in the Male Prison, 16 Journal of Offender Rehabilitation 1-25 (1991).
[28]Even international points of reference concerning public repudiation are compromised by the fact that the corrections industry in the United States has begun to import the technology of penal pain with consistent and increasing success. Cf. Christie, supra note 1.