Wednesday, April 22, 2020

Why are black folks dying of COVID?: The Simple Answer

By John Eason, Associate Professor of Sociology at the University of Wisconsin, Madison

Some may have you believe that Black folks are dying of COVID-19 at a higher rate because we lack personal responsibility, have faulty moral character, or cannot escape the so-called “culture of poverty”.

However, the COVID-19 crisis exposes a simple but powerful reality—racism does not take a day off—even during a pandemic. In fact, years of racial disparities in the criminal justice system and access to healthcare will prove more important  in the battle to flatten the COVID-19 curve than life choices of the most disadvantaged individuals.

This map illustrates COVID-19 cases from March 1-April 5 across US counties suggesting that counties with prisons are hotspots for the outbreak. Given the disproportionate number of Black and Latinx corrections officers in these counties, prisons may unwittingly serve as vectors of the disease in communities of color.

Research shows that the prison is deeply immersed in American life, as over 60% of Americans know someone or have an incarcerated family member. This pattern is even more stark for African-Americans, as nearly 9 out of 10  know someone or have a family member in prison or jail. 

This explains why it came as no surprise to many Black folks that Cook County Jail is a top hot spot for COVID-19.

Although once designed to help prevent outbreaks, prisons, jails, and immigrant detention centers are now incubators for infectious disease as the number of infections inside these facilities continues to outpace the free world. While newly incarcerated people can bring COVID-19 into prisons, guards and other staff are the ones who come and go most often.

Given the acute, airborne nature of COVID-19, there is no way to effectively social distance inside facilities. In fact, early reporting of COVID-19 infections across prisons and jails show how guards suffer higher rates of infections than inmates.

What is not a widely known fact is that African-Americans are overrepresented in the front line correction staff. This means that Black workers in correctional facilities are possibly being infected at the highest rate of any population. So while some may express concern about prisoners being released as leading to increased infections in Black communities, Black corrections officers may unknowingly be culpable for this trend.

We see this phenomenon in racialized trends in employment with other essential workers. Frontline service from truck and delivery drivers, grocery store cashiers, public transportation operators, maintenance staffs, postal workers, and a host of other low-skilled professions are disproportionately occupied by people of color. Let us remember these professions were not often the first choice, but people settled into them because of the well-documented legacy of discrimination in educational attainment and the labor market. To be clear, every bus driver does not drive a bus because it was their childhood dream. Many faced discrimination in school and on the labor market and took the best job they could given the challenges they face. Because of this, many Black folks end up living in segregated, underserved neighborhoods after years of redlining and predatory lending. This thereby results in longer commute times to jobs that we must keep if we want health insurance during a pandemic.

So what can be done? Less racism would be great but we can start by remaking the narrative around the plight African-Americans in this current epidemic. To move beyond rhetoric will take a strong will. This crisis will certainly test our mettle to do simple things because they are right.

For starters, we need to make healthcare organizations more available to African-Americans in their neighborhoods. In analyzing COVID-19 deaths and infections across Chicago, we found that African-Americans living in neighborhoods with greater access to healthcare organizations (urgent cares, primary care doctors and facilitate, hospitals, clinics, etc.) have lower rates of COVID-19 and deaths from COVID-19. By placing HCOs in black neighborhoods we effectively reduce travel, reduce transmission, and flatten the curve.

The COVID-19 epidemic presents a series of policy choices where public health and public safety can be at odds. However, if we understand that health is foundational to public safety, we can take drastic measures to contain the COVID-19 pandemic. 

In the wake of this crisis, some states and counties have pivoted towards doing the right thing amongst calls to “let my people go” from prisons and jails. However, there are some governors, sheriffs, and other elected officials that have stood firm in their “tough on crime” commitment.

For those involved with the criminal justice system, flattening the COVID-19 curve should not only be essential in bail decisions, but also releasing prisoners with underlying medical conditions, and ending technical parole violations. Governors and other local leaders also need to end admissions to all prisons and jails based on technical violations until this wave of the pandemic passes. We need to step up testing for everyone leaving prisons to divert those reentering from communities already suffering from high rates of COVID-19. We need to provide immediate early release for inmates (starting with non-violent offenders) over 50 with medical conditions with high comorbidity (e.g. diabetes, cancer). Even more importantly, early release for anyone whose sentence is within 6 months of completion. Finally, given that families cannot visit and the recent spike in unemployment due to COVID-19 has disproportionately affected families of those incarcerated, there should be free or reduced fees for calls for everyone in jails and prison.

John M. Eason
Associate Professor
Department of Sociology
University of Wisconsin-Madison

Wednesday, April 15, 2020

Jails, Prisons, and COVID-19: A Roundup of the Resources

*This page will be updated as things progress; it is certainly not comprehensive, but is intended to help digest a large amount of information, or connect up with more comprehensive sources. If you have resources to share, particularly for or involving punishment scholars, please email me.

It has been a little over a month since a worldwide pandemic was declared and carceral facilities are in the news a lot. I don't know about you, but I'm getting a little overwhelmed and having a difficult time keeping up (and not just because of the amount of things to read). This post is intended to compile resources about COVID-19 as it relates to prisons, jails, and the people who live and work therein. It is written for punishment scholars and others interested in getting a quick overview of public-facing literature on the situation. 

Sunday, March 15, 2020

UPDATED Working List of Online Videos (Talks, Interviews)

Roundup from around YouTube and elsewhere:

Past P&S Digital Speaker Series:

Tuesday, February 25, 2020

Members' Publications: February 2020 Edition

As compiled by Kaitlyn Quinn

Collaborative Research Network: Punishment and Society

Hadar Aviram, UC Hastings College of Law, USA
Ashley Rubin, University of Hawaiʻi at Mānoa, USA

February 2020


Black, Lynsey, Seal, Lizzie and Seemungal, Florence. 2019 (advance online). “Public opinion on crime, punishment and the death penalty in Barbados.” Punishment & Society [Access it here]

The bulk of extant research on public opinion on crime and punishment is focused on Global North nations. This article contributes a new perspective to the literature on punitivism by examining public opinion on crime, punishment and the death penalty in Barbados. The article presents insights from exploratory focus group research conducted in Barbados in 2017. These findings are particularly relevant as Barbadian lawmakers navigate reform of the nation’s death penalty law. While the focus groups reveal anxieties that echo those identified in other jurisdictions, related to nostalgia for the past and concern regarding social order for instance, they also demonstrate the specific relevance of time and place. Using approaches from Caribbean Criminology and drawing on post-colonial perspectives, the article examines the context of views on punishment in Barbados, including perceptions of ‘neo-colonial’ interference and concerns about what can be lost in the process of ‘progress’.

Campbell, Michael, Schoenfeld, Heather and Vaughn, Paige. 2019 (online first). “Same old song and dance? An analysis of legislative activity in a period of penal reform.” Punishment & Society. [Access it here]

After years of tough-on-crime politics and increasingly punitive sentencing in the United States, economic, political, and social shifts in the 21st century have created new opportunities for opponents of the penal status quo. By 2013, a majority of states had enacted some type of reform aimed at reducing prison populations. An emerging body of punishment and society scholarship seeks to understand the possibilities and characteristics of reform efforts by examining enacted state legislation. In this article, we use a unique data set of all proposed and passed bills in three legislative sessions in New Jersey between 2001 and 2013 to provide a nuanced empirical account of change and continuity in penal logics in the period of reform. Even when not enacted, proposed legislation shapes the penal field by introducing new ideas that are later incorporated into rhetoric, policy, or practice. Proposed bills that never become law can also alter the political calculus for reformers or their opponents. Our findings demonstrate that by expanding our universe of data, we gain insight into characteristics of “late mass incarceration” that we might otherwise miss. In particular, while we find evidence of decarceration and bifurcation logics, our analysis also demonstrates that state lawmakers continue to participate in “crime control theater” and reproduce the same punitive penal logics that helped build the carceral state.

Garland, David. 2019. “Reading Foucault: An Ongoing Engagement.” Journal of Law and Society 46(4): 640-661. [Access it here]

This article is a contribution to the occasional series dealing with a major book that has influenced the author. 

Garland, David. 2019 (advance online). “Penal Controls and Social Controls: Toward a Theory of American Penal Exceptionalism.” Punishment & Society [Access it here]

This article argues that to explain American penal exceptionalism, we have to consider America’s exceptional levels of punishment together with America’s exceptional levels of violence and disorder, while understanding both of these as outcomes of America’s distinctive political economy. After specifying the multiple respects in which American penality is a comparative outlier, the article develops a new theorization of modes of penal action that reveals the extent to which the US has come to rely on penal controls rather than other kinds of punishment. This over-reliance on penal controls is viewed as an adaptation to the weakness of non-penal social controls in American communities. These social control deficits are, in turn, attributed to America’s ultra-liberal political economy, which is seen as having detrimental effects for the functioning of families and communities, tending to reduce the effectiveness of informal social controls and to generate high levels of neighborhood disorganization and violence. The same political economy limits the capacity of government to respond to these structurally-generated problems using the social policy interventions characteristic of more fully-developed welfare states. The result is a marked bias towards the use of penal controls.

Iftene, Adelina, Downie, Jocelyn, and Steeves, Megan. 2019. “Assisted Dying for Prison Populations: Lessons from and for Abroad.” Medical Law International 19(2-3): 207-225. [Access it here]

Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in Canada came into effect in June 2016. Because of section 86(1) of the Corrections and Conditional Release Act, as soon as MAiD became available in the community, it also needed to be made available to federal prisoners. There are some good reasons to be concerned about MAiD in the Canadian corrections system based on logistical, legal, and moral considerations. Fortunately, Canada is not the first country to decriminalize assisted dying and so Canadian policies and practices can be compared to others and take some lessons from their experiences. Thus, by reviewing the legal status of assisted dying in prisons internationally, the regulation of assisted dying, demand for assisted dying from prisoners, and the process for prisoners accessing assisted dying, this article offers a comparative overview of assisted dying for prisoners around the world in an effort to inform Canadian and other jurisdictions’ law, policy, and practice.

Kaufman, Sarah Beth. 2019. Book Review: “Judge and Punish: The Penal State on Trial.” Contemporary Sociology48(6): 651-652. [Access it here]

Kaufman, Sarah Beth. 2019. “The Criminalization of Muslims in the United States, 2016.” Qualitative Sociology 42: 521–542. [Access it here]

The criminalization of Muslims—framing an Islamic religious identity as a problem to be solved using state crime control logic—is undeniably in process in the United States. Local, state, and federal statutes target Muslims for surveillance and exclusion, and media sources depict Muslims as synonymous with terrorism, as others have shown. This paper analyzes the public’s role in the criminalization of Islam, which I call “cr-Islamization.” Drawing on in-depth, qualitative interviews in a major South-west city during the lead-up to the 2016 presidential election, I detail how the majority of 144 politically, racially, and economically diverse interviewees talk about Muslims as a potential “racial threat,” using “fear of crime” language indicative of the mass incarceration era. This suggests that criminalization theory should be central to sociological studies of Muslims in the contemporary United States, and that criminalization rhetoric remains powerful, despite mainstream enthusiasm for criminal justice reform. I argue that criminalization’s power might reside in its ability to mutate in the “post-racial” era. The mechanisms supporting crimmigration, the criminalization of black Americans, and cr-Islamization are related but not identical. Muslims are religiously and racially subjugated, but more economically secure compared to other criminalized groups. This paper’s findings should prompt scholars to re-examine the relationships between racialization, criminalization, religious subjugation, and economic exploitation in the twenty-first century United States.

Kaufman, Sarah Beth and Niner, Hanna. 2019. “Muslim Victimization in the Contemporary US: Clarifying the Racialization Thesis.” Critical Criminology 27: 485–502. [Access it here]

This article draws on in-depth, qualitative interviews with Muslim and non-Muslim Americans in 2016 to specify how Muslim "racialization" is shaped by the racial politics of the United States (US). Anti-Muslim bias is not experienced by religious Muslims as a whole, but by people whose bodies are read to be affiliated with the Islamic religion-often erroneously because of their perceived racial characteristics. Self-identified black, white, and Hispanic Muslims with no visible markers of their religion do not experience anti-Muslim harassment, while non-Muslim Christians, Hindus, and Sikhs who embody an imagined "Muslim look," cope with fear and aggression from strangers on a daily basis. These findings are notable for two reasons. First, our respondents demonstrate how racialized religion is mutable: they are active in constructing how Islam is read on their bodies in public. Second, our findings demonstrate how hate crime categorization in the US obscures the role that racism plays in religious victimization. We urge scholars who study anti-Muslim acts to include non-Muslims in their analyses, and advocate for the re-conceptualization of identity based hate crime categories. Excavating the corporeality of criminal victimization in particular can help to understand the ways in which biases are experienced in the contemporary US. 

McNeill, Fergus. 2020. “Penal and Welfare Conditionality: Discipline or degradation.” Social and Policy Administration 54(2): 295-310. [Access it here]

This paper aims to complement analyses of welfare conditionality by examining what can be learned from studies of
conditional punishment in the criminal justice system. Drawing on a range of recent studies, I explore lived experiences of the conditionality attendant on penal forms of supervision; penal forms that have expanded rapidly in recent decades. I argue that, to paraphrase Stan Cohen, such supervision is as much about the dispersal of degradation as it is about the dispersal of discipline. Indeed, in contemporary western societies, both in punishment and in welfare systems, I suggest that conditionality functions less to discipline poor and marginalised people and more to disqualify them from the entitlements of ordinary citizenship. In so doing, conditionality constructs them as denizens, thus serving to limit the liabilities for the state that arise from social inequalities. Extending Delroy Fletcher and Sharon Wright's metaphor, the abusive slaps now meted out in concert by both hands of the penal state are as much about degrading and denying the entitlements of “needy” denizens as they are about influencing their conduct. But crucially, even within the increasingly restrictive context created by these developments,
penal practitioners can and do provide care and assistance.

Phelps, Michelle. 2020. “Mass Probation from Micro to Macro: Tracing the Expansion and Consequences of Community Supervision.” Annual Review of Criminology 3: 261-279. [Access it here]

Between 1980 and 2007, probation rates in the United States skyrocketed alongside imprisonment rates; since 2007, both forms of criminal justice control have declined in use. Although a large literature in criminology and related fields has explored the causes and consequences of mass incarceration, very little research has explored the parallel rise of mass probation. This review takes stock of our knowledge of probation in the United States. In the first section, I trace the expansion of probation historically, across states, and for specific demographic groups. I then summarize the characteristics of adults on probation today and what we know about probation revocation. Lastly, I review the nascent literature on the causal effects of probation for individuals, families, neighborhoods, and society. I end by discussing a plan for research and the growing movement to blunt the harms of mass supervision.

Aviram, Hadar. 2020Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole. University of California Press. [More information here]

In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.

Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.

Fleury-Steiner, B., & Nielsen, L. B. (eds) 2019. The new civil rights research: A constitutive approach. Routledge (originally published 2006). [More information here]

First published in 2006, this book brings together some of the most innovative and important research on civil rights law and legality, this book draws on narratives of individuals from a variety of contexts to provide a rich and contextualized understanding of what happens when law interacts with other competing systems or forms of social organization. By privileging the real world experiences of those most influenced by rights, the collection moves beyond the traditional polarizing debates and presents a constitutive approach to rights that is not reducible to a simple 'for or against' rights formula. While this complex consciousness approach often contributes to the reproduction of dominant-subordinate social relations, it also allows for spaces of resisting existing hierarchical structures embedded in various law-related sites.

Iftene, Adelina. 2019. Punished for Aging: Vulnerability, Rights and Access to Justice in Canadian Penitentiaries.University of Toronto Press. [More information here]

Built around the experiences of older prisoners, Punished for Aging looks at the challenges individuals face in Canadian penitentiaries and their struggles for justice. Through firsthand accounts and quantitative data drawn from extensive interviews, this book brings forward the experiences of federally incarcerated people living their "golden years" behind bars. These experiences show the limited ability of the system to respond to heightened needs, while also raising questions about how international and national laws and policies are applied, and why they fail to ensure the safety and well-being of incarcerated individuals. In so doing, Adelina Iftene explores the shortcomings of institutional processes, prison-monitoring mechanisms, and legal remedies available in courts and tribunals, which leave prisoners vulnerable to rights abuses.

Some of the problems addressed in this book are not new; however, the demographic shift and the increase in people dying in prisons after long, inadequately addressed illnesses, with few release options, adds a renewed sense of urgency to reform. Working from the interview data, contextualized by participants’ lived experiences, and building on previous work, Iftene seeks solutions for such reform, which would constitute a significant step forward not only in protecting older prisoners, but in consolidating the status of incarcerated individuals as holders of substantive rights.
Iftene, Adelina. 2019. “Incarceration in Canada: Risks to and Opportunities for Public Health.” In Tracey Bailey, Tess Sheldon, and Jacob Shelley (eds) Public Health Law and Policy in Canada (4th edition). LexisNexis Canada. [More information here]

Iftene, Adelina. 2019. “Mr. Big: The Undercover Breach of the Right against Self-Incrimination.” In C. Hunt (ed) Perspectives on the Law of Privilege. Thomson Reuters. [More information here]

Lobel, Jules and Scharff Smith, Peter (eds) 2019. Solitary Confinement: Effects, Practices, and Pathways toward Reform. Oxford University Press. [More information here]

The use of solitary confinement in prisons became common with the rise of the modern penitentiary during the first half of the nineteenth century and his since remained a feature of many prison systems all over the world. Solitary confinement is used for a panoply of different reasons although research tells us that these practices have widespread negative health effects. Besides the death penalty, it is arguably the most punitive and dangerous intervention available to state authorities in democratic nations. Nevertheless, in the United States there are currently an estimated 80,000 to 100,000 prisoners in small cells for more than 22 hours per day with little or no social contact and no physical contact visits with family or friends. Even in Scandinavia, thousands of prisoners are placed in solitary confinement every year and with an alarming frequency. These facts have spawned international interest in this topic and a growing international reform movement, which includes researchers, litigators, and human rights defenders as well as prison staff and prisoners. This book is the first to take a broad international comparative approach and to apply an interdisciplinary lens to this subject. In this volume neuroscientists, high-level prison officials, social and political scientists, medical doctors, lawyers, and former prisoners and their families from different countries will address the effects and practices of prolonged solitary confinement and the movement for its reform and abolition.

Thursday, November 28, 2019

Members' Publications: November 2019 Edition

As compiled by Kaitlyn Quinn

Collaborative Research Network: Punishment and Society

Hadar Aviram, UC Hastings College of Law, USA
Ashley Rubin, University of Hawaiʻi at Mānoa, USA

November 2019


Briggs, Jacqueline. 2019 “Exemplary Punishment: T.R.L. MacInnes, the Department of Indian Affairs, and Indigenous Executions, 1936–52.” Canadian Historical Review 100(3): 398-438. 
[Access it here]

This article focuses on a series of death penalty recommendations written by Department of Indian Affairs (dia) Secretary Thomas Robert Loftus (T.R.L.) MacInnes between 1936 and 1952, arguing that these recommendations contributed to the increase in Indigenous executions in the 1940s. Identifying MacInnes as a “born bureaucrat” and member of the governing elite in a brief biographical sketch, professional and personal connections are drawn between MacInnes and Duncan Campbell Scott, arguing that MacInnes inherited Scott’s legacy and extended his influence for another generation in the department. A discussion of the social and political context of the dia in the 1940s describes changes in the department at the culmination of a long period of policy stability stretching from the early nineteenth century. Attention is paid to networks of knowledge production and centralization of control at dia headquarters in Ottawa, and how the information collected from the field enabled MacInnes to claim expertise as an amateur criminologist. An analysis of themes in the recommendations reveals a reliance on tropes from the quasi science of criminal anthropology in classifying Indigenous peoples on a scale of criminal responsibility that mapped onto racial hierarchies and the dia’s “civilization policy.” The article discusses how MacInnes constructed and deployed racializing narratives in response to the “problem” of Indigenous peoples rejecting whiteness and explains how he positioned Indigenous executions as a being in the “interest of Indian administration.”

Cheliotis, L. K. 2020 (in press) “Neither Dupes, Nor Pipers: Violent Crime, Public Sentiment and the Political Origins of Mass Incarceration in the United States”. Current Issues in Criminal Justice.

One of the most contentious questions in contemporary penology is why the use of imprisonment started rising rapidly in the US in the early 1970s. The two dominant perspectives on the subject focus on crime’s public salience and how it relates to violent crime and political elites, respectively. The first perspective holds that incumbent political elites promoted tougher criminal justice policies in the name of a public concern about violent crime that they previously aroused themselves, in order ultimately to serve narrow interests. The second perspective argues instead that politicians in office toughened criminal justice policies in response to a legitimate public disquiet about violent crime. Based on an unprecedented comparison of trends in violent crime and public opinion over the period 1960-1980, this article suggests that both perspectives misread how the politics of crime and criminal justice unfolded around the time mass incarceration was taking off. Research on the subject should henceforth shift its focus onto perspectives that do not treat majority public opinion as a key element in criminal justice policy-making.

Fleury-Steiner, Benjamin. 2019 “Deportation Platforms: The AWS-ICE Alliance and the Fallacy of Explicit Agendas.” Surveillance & Society 17(2): 105-110. [Access it here]

In this paper, I analyze elite discourse in the context of the increasing role played by large-scale corporate platforms in federal immigration enforcement in the US Specifically, I focus on Amazon Web Services' (AWS) alliance with Immigration and Customs Enforcement (ICE). Incorporating Marx's (2016) "fallacy of explicit agendas" as a heuristic for contextualizing recent employee challenges to company CEO Jeff Bezos, I show how the fallacy serves to conceal far more about the AWS alliance with ICE, an organization with a long track record of deeply troubling practices. The secrecy that is fostered by such discourse also obscures the growing dependency of government entities on large-scale technologies of marginalizing surveillance that threaten civil liberties and rights of refugees and immigrants.

Hughett, Amanda. 2019. “A ‘Safe Outlet’ for Prisoner Discontent: How Prison Grievance Procedures Helped Stymie Prison Organizing During the 1970s.” Law & Social Inquiry 44(4): 893-921. [Access it here]

This article demonstrates how civil liberties lawyers’ efforts to address the complaints of imprisoned people in the 1970s inadvertently helped provide state attorneys with tools they used to stymie prisoners’ organizing efforts. Using North Carolina as a case study, I explain why a diverse range of legal actors—including civil liberties lawyers, federal judges, and state attorneys—supported the creation of prison grievance procedures. I then reveal how state attorneys successfully used them, once implemented, to argue that because the procedures offered a seemingly fair, institutional avenue for imprisoned people to express their grievances, prison administrators could ban prison organizing without violating prisoners’ First Amendment rights to free speech and assembly. The history of prison grievance procedures, I suggest, highlights the limits of constitutional rights litigation for achieving social change, offers a new approach to the study of legal endogeneity, and helps explain the demise of the prisoners’ rights movement.

Jouet, Mugambi. 2019. “Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence.” Journal of Criminal Law & Criminology 109(4): 703-768. [Access it here]

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had become its defining norm.

Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms—dignity, proportionality, legitimacy, and rehabilitation—that have checked draconian prison terms in Europe, Canada, and beyond. In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases. Partly drawing upon the principles in these decisions, twenty-two states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment. The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent—and strikingly similar to those in other Western democracies. Historiography sheds light on why the academy has largely overlooked this relative paradigm shift. As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence.

This Article advances a comparative theory of punishment to analyze these developments. In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns. Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy. Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies. They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement. However, American justice appears particularly susceptible to unpredictable swings and backlashes. While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era.

Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction. The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction. American justice may cyclically oscillate between repressive or humanitarian aspirations, and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term. 

Jouet, Mugambi. 2019. “Guns, Identity, and Nationhood.” Nature - Palgrave Communications 5(138): 1-8. [Access it here]

The article provides a theoretical perspective on the symbolic meaning of the right to bear arms in modern America, especially among its conservative movement. Neglecting this issue, scholarship on gun symbolism has commonly focused on guns possessed by offenders in inner-cities, such as juveniles or gang members. Offering a multidisciplinary and comparative outlook, the article explains how guns have become symbols of a worldview under which armed patriots must stand ready to defend America from “tyranny,” “big government,” “socialism,” and other existential threats. In particular, the U.S. conservative movement does not merely perceive the right to bear arms as a means of self-defense against criminals, but as a safeguard against an oppressive government that “patriots” may have to overthrow by force. The article examines the hypothesis that guns foster a sense of belonging in this conception of nationhood. This worldview is not solely limited to politicians, elites or activists, as it can encompass rank-and-file conservatives. Group identification can rest on sharing radical beliefs that enhance cohesion, including rallying against perceived threats. This mindset helps explain resistance to elementary reforms to regulate firearms. If one believes that an unbridled right to bear arms is not only key to protecting the United States, but also key to what it means to be an American, concessions on gun control become difficult to envision. While conservatives in other Western democracies tend to support significant gun control, a key dimension of American exceptionalism is the relative normalization of a conservative identity in which firearms have acquired a peculiar symbolic value. 

Kerrison, E. M., Goff, P. A., Burbank, C., & Hyatt, J. M. 2019. “On creating ethical, productive, and durable action research partnerships with police officers and their departments: A case study of the National Justice Database.” Police Practice and Research: An International Journal 20(6): 567–584. [Access it here]

Translational policing science must begin with explicitly communicated research aims and a shared vision for promoting safety. For researchers to approach police departments without first considering the concerns held by officers and their departments at large, is unethical, unproductive, and undermines efforts to secure longstanding mutually useful researcher- practitioner partnerships. In presenting a case study analysis of the multi- method National Justice Database’s recruitment practices, this article high- lights some of the challenges that emerge when articulating study aims that hold relevance for public safety; defining theoretically- and solution- oriented research questions; administrative police data collection, analysis, and dissemination; and bolstering human research subject protection protocols for sworn officers who may be justifiably reluctant to participate in social science research endeavors. Implications for ethical policing research practice, fostering collaborative researcher-practitioner partnerships, and leveraging the benefits of data science are also discussed.

Rubin, Ashley T. 2019. “Revisiting the Discovery of the Asylum: Early U.S. Prison History Since David Rothman.”Annual Review of Law and Social Science 15: 137-154. [Access it here]

David J. Rothman's The Discovery of the Asylum, one of the first major works to critically interrogate the beginning of America's extensive reliance on institutionalization, effectively launched the contemporary field of prison history. Rothman traced the first modern prisons’ (1820s–1850s) roots to the post-Revolution social turmoil and reformers’ desire for perfectly ordered spaces. In the nearly 50 years since his pioneering work, several generations of historians, inspired by Rothman, have amassed a wealth of information about the early prisons, much of it correcting inaccuracies and blind spots in his account. This review examines the knowledge about the rise of the prison, focusing on this post-Rothman work. In particular, this review discusses this newer work organized into three categories: the claim that prisons were an invention of Jacksonian America, reformers’ other motivations for creating and supporting prisons, and the frequently gendered and racialized experiences of prisoners. The review closes by reflecting on the importance of prison history in the contemporary context and suggesting areas for future research.

Rubin, Ashley T. 2019. “Interrogating the Penal Pendulum: An Introduction to the Review Symposium Issue on Breaking the Pendulum: The Long Struggle Over Criminal Justice.” Law & Social Inquiry 44(3): 791-798. [Access it here]

This Essay introduces a Review Symposium for Philip Goodman, Joshua Page, and Michelle Phelps’s Breaking the Pendulum, a book that challenges the centrality of the pendulum metaphor that scholars, journalists, and politicians have used to describe significant shifts in the overall orientation of punishment nationwide. Drawing on recent research, Goodman, Page, and Phelps lay out the case for abandoning this metaphor as well as its associated theory of penal change, offering in its place an “agonistic perspective.” Using this agonistic perspective as well as research on the topic, I suggest some reasons why the pendulum metaphor may still be a fruitful site of interrogation. Specifically, I argue that, while recognizing the caveats illustrated by Goodman, Page, and Phelps, we should take seriously the pendular pattern of US penal history told at the national level and we should not dismiss the mechanical causes of penal change in our efforts to populate theories and accounts of penal change with individual and group actors.

Trinkner, R., Kerrison, E. M., & Goff, P. A. 2019. “The force of fear: Police stereotype threat, self- legitimacy, and support for excessive force.” Law and Human Behavior 43(5): 421–435. [Access it here]

Researchers have linked police officers’ concerns with appearing racist—a kind of stereotype threat—to racial disparities in the use of force. This study presents the first empirical test of the hypothesized psychological mechanism linking stereotype threat to police support for violence. We hypothesized that stereotype threat undermines officers’ self-legitimacy, or the confidence they have in their inherent authority, encouraging over-reliance on coercive policing to maintain control. Officers (n=784) from the patrol division of a large urban police force completed a survey in order to test this hypothesis. Respondents completed measures of stereotype threat, self-legitimacy, resistance to use of force policy, approval of unreasonable force, and endorsement of procedurally fair policing. Structural equation models showed that elevated stereotype threat was associated with lower self-legitimacy (B = -.15), which in turn was associated with more resistance to restrictions on force (B = -.17), greater approval of unreasonable force (B = -.31), and lower endorsement of fair policing (B = -.57). These results reveal that concerns about appearing racist are actually associated with increased support for coercive policing— potentially further eroding public trust.

Xenakis, S. and L. K. Cheliotis. 2019. “Moderación carcelaria y la cara de Jano de la presión internacional. Una larga reseña sobre el involucramiento de Grecia en la convención europea de Derechos Humanos”. Unidad Sociológica (Buenos Aires) 4(13-14): 6-22. [Access it here]

Jouet, Mugambi. 2019 (paperback ed.). Exceptional America: What Divides Americans From the World and From Each Other. University of California Press. [More information here]

Comprehensive study of American exceptionalism, including mass incarceration, the death penalty, guns, and other dimensions of criminal justice. The book’s scholarly analysis is multidisciplinary, drawing on law, history, political science, sociology, and other fields.

Thursday, June 6, 2019

Members' Publications: June 2019 Edition

As compiled by Kaitlyn Quinn

Collaborative Research Network: Punishment and Society

Hadar Aviram, UC Hastings College of Law, USA
Ashley Rubin, University of Toronto, Canada

June 2019


Crete, J.P., Monteiro, A., and Sapers, H. 2018. “Reducing Ontario’s Provincial Carceral Footprint through Correctional Reform.” Journal of Community Corrections 28(2):7-12. 
[Access it here]

This article provides an overview of recommendations made by the Independent Review of Ontario Corrections (IROC) regarding the use of gradual release mechanisms such temporary absences, provincial parole provisions, current attempts at strengthening community supports in Ontario, and the need to better support Indigenous peoples who come into contact with the criminal justice system.

Hamilton-Smith, Guy.2018. “The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham.” Texas Journal on Civil Liberties and Civil Rights, 24(1): 25-58. 
[Access it here]

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms. In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.” Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness. As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system. Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

Jiang, Jize. 2019. “Book Review: Immigrants under Threat: Risk and Resistance in Deportation Nation.”International Criminal Justice Review. First published online: April 1, 2019.
[Access it here]

Lynch, M.2019. “Booker circumvention? Adjudication strategies in the advisory sentencing guidelines era.” N.Y.U. Review of Law & Social Change 43(1):59-108.
[Access it here]
This article addresses the question of policy circumvention in federal courts by examining how legal actors have differentially adapted their adjudicatory practices after U.S. v. Booker (2005) rendered the federal sentencing guidelines advisory rather than mandatory. By linking two distinct bodies of scholarship— the courts-as-communities scholarship that assesses and explains locale-based variations in criminal court operations and the socio-legal “law and organizations” scholarship that addresses how organizational actors translate and implement top-down legal policy reforms—this article argues that law-as-practiced is always temporally and spatially contingent. Expanding on prior quantitative research that addresses district-specific adaptations to Booker, this article reports on findings from a qualitative study recently conducted by the author of four federal districts. Based on these findings, this article examines within-district changes and between-district variations in: (1) legal actors’ perceptions of whether the Booker policy change impacted local practices and outcomes, and if so, the extent of its impact; (2) how legal strategies and practices have changed at three stages of the criminal process: charging, pre-conviction plea negotiations, and formal sentencing; and (3) interviewees’ perceptions about whether Booker contributed to greater racial or other disparities in case outcomes. Findings indicate that a dynamic, proactive adaptation process is taking place, conditioned by local norms but not fully dictated by those norms. They also make clear that changes in sentencing outcomes in the post-Booker period are not simply the result of liberated judges exercising their discretion, but rather are jointly produced by courtroom workgroup members through both contestation and cooperation. This inquiry is especially timely given both ongoing and proposed changes in federal sentencing policy that aim to maintain severity in punishment, re-impose constraints on legal actors, and threaten to exacerbate racial and ethnic inequalities in the federal criminal system.

Lynch, M.2019. “The narrative of the number: Quantification in criminal court.” Law & Social Inquiry 44(1):31-57.
[Access it here]
Scholars have documented the explosion in quantification of social phenomena within organizational settings. A key site of the quantitative turn has been in the penallegal field, with purported transformative effects. This article draws from a field research project examining the ontheground implementation of the federal sentencing guidelines to explore how the guidelines' numbersbased logic is both articulated and reconstituted by legal actors in the adversarial process. Complementing macrolevel work that examines the transformative effects of quantification at the socialstructural level, I take a microlevel, empirically grounded approach that analytically focuses on daytoday interactions in court to reveal quantification's possibilities and limits. I identify three adversarial strategies that narrate the meaning of the guideline calculation to demonstrate how the complex quantitative guidelines system becomes incorporated into narrative form to know, assess, and judge legal subjects.

Lynch, M.2018. “Prosecutorial discretion, drug case selection, and inequality in federal court.” Justice Quarterly 35(7):1309-1336.
[Access it here]
In this article, I explore variations in prosecutors’ discretionary case selection practices by drawing on findings from a comparative field research project of drug prosecutions conducted in four federal districts. Using data from a series of in-depth interviews with legal actors in each district, I develop a typology of the kinds of drug cases brought in my sample districts, explore the logics underpinning their selection, and examine the potential impact of selection practices on racial inequality in drug caseloads. Findings elucidate the local variations in logics and practices that are nonetheless shaped by broader ideologies and structured incentives that encourage certain types of prosecutions. Prosecutorial discretion at the case selection stage also plays an important role in how cases are adjudicated, which is often closely linked to the logic underpinning the choice to file.

Lynch, M.2018. “94 different countries? Time, place, and variations in federal criminal justice.” Berkeley Journal of Criminal Law 23(3):134-163.
[Access it here]

Lynch, M.and Omori, M. 2018. “Crack as proxy: Aggressive federal drug prosecutions and the production of black-white racial inequality.” Law & Society Review 52(3):773-809.
[Access it here]
In this article, we empirically examine jurisdictional variations in federal crack prosecutions to measure whether aggressive crack prosecutorial practices are associated with racial inequality in federal caseload characteristics and outcomes. Building on theories that address the production of inequality in institutional settings, we hypothesize that U.S. Attorneys’ offices that are more proactive in charging defendants with crack, relative to other kinds of drugs, and relative to case strength and seriousness, will demonstrate higher rates of black–white racial inequality in case outcomes across the entire criminal caseload. Consistent with theories of institutional racism, our findings demonstrate that aggressive crack prosecutions at the district level are a strong predictor of black–white inequality in conviction rates across the entire criminal caseload, and a much more modest predictor of inequality in final sentence outcomes. We conclude by discussing the importance of organizationallevel empirical analyses for more effectively uncovering the conditions under which inequality can and does flourish in legal settings, and suggest possible future lines of inquiry along these lines.

Page, Joshua, Victoria Piehowski, and Joe Soss. 2019. “A Debt of Care: Commercial Bail and the Gendered Logic of Criminal Justice Predation.” RSF: The Russell Sage Foundation of the Social Sciences5(1): 150-172.
[Access it here]

Among the institutions that link criminal justice and inequality in the United States, commercial bail remains one of the most important yet least understood. Each year, the bail industry extracts millions of dollars from lower-income Americans, disproportionately draining resources from poor communities of color. We draw on ethnographic research to explore how the bail system operates as a predatory social process, arguing that gender interacts with class and race to structure resource extraction in this field. Poor women of color are especially subject to bail predation because they are seen within the larger social organization of care as bearing primary responsibility for defendants. Gendered care work and emotional labor are thus central to the field’s logic of practice and to bail industry profits.

Rubin, Ashley T.2019 (advance online). “Early US Prison History Beyond Rothman: Revisiting The Discovery of the Asylum.” Annual Review of Law and Social Science.
[Access it here]

David J. Rothman’s The Discovery of the Asylum, one of the first major works to critically interrogate the beginning of America’s extensive reliance on institutionalization, effectively launched the contemporary field of prison history. Rothman traced the first modern prisons’ (1820s–1850s) roots to the post-Revolution social turmoil and reformers’ desire for perfectly ordered spaces. In the nearly 50 years since his pioneering work, several generations of historians, inspired by Rothman, have amassed a wealth of information about the early prisons, much of it correcting inaccuracies and blind spots in his account. This review examines the knowledge about the rise of the prison, focusing on this post-Rothman work. In particular, this review discusses this newer work organized into three categories: the claim that prisons were an invention of Jacksonian America, reformers’ other motivations for creating and supporting prisons, and the frequently gendered and racialized experiences of prisoners. The review closes by reflecting on the importance of prison history in the contemporary context and suggesting areas for future research.

Rubin, Ashley T.2019. “Punishment's Legal Templates: A Theory of Formal Penal Change.” Law & Society Review53(2):518-553.
[Access it here]

The wellknown 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 sociohistorical analyses of punishment. Recent research, however, has challenged the significance of apparently largescale 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 cognitivecultural 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.

Super, Gail. 2019. “‘Three warnings and you’re out’: Banishment and precarious penality in South Africa’s informal settlements.” Punishment and Society, First published February 3, 2019.
[Access it here]

This paper asks how punitive forms of non-state punishment play out on the margins of the state, in informal (shack) settlements in South Africa. My focus is on the practice of forcing those who are suspected of certain offences to leave their homes in informal settlements. I refer to this as ‘banishment’ and argue that it is a ‘penal phenomenon’ which is intimately tied to the general precarity that residents experience on a daily basis. The paper examines the ways in which these formally illegal, but nonetheless legitimate practices, draw on and reconfigure liberal state punishment. I use my study to make a broader theoretical point about the interplay between lawful state punishment and unlawful punishment on the periphery of the state. The blurred boundaries between legal (state) violence and illegal (but nonetheless legitimate) violence are particularly ‘visible’ in situations of ‘precarious penality’ – a term that I use to describe the unstable, violent and exclusionary penality that manifests in situations of socio-economic precarity, particularly in contexts of inequality, high rates of violent crime and a delegitimated rule of law. In these circumstances ‘non-state’ punishment contributes to the construction and maintenance of group boundaries and fulfils a similar function to ‘formal’ punishment. Thus, I ask whether it makes sense to exclude ‘non-state’ public authorities which act against ‘criminality’, when asking what or who constitutes the penal field and, when measuring state punitiveness?

Werth, Robert.2019. “Risk and punishment: The recent history and uncertain future of actuarial, algorithmic, and “evidence-based” penal techniques.” Sociology Compass. First published January 10.  
[Access it here]

In recent decades, risk prediction has proliferated in the penal realm. Risk instruments currently guide an array of correctional decisions—such as participation in diversion programs, the provision of correctional services, and probation and parole supervision levels—and are being increasingly utilized or considered in pretrial detention and criminal sentencing. This article reviews empirical and theoretical accounts of the proliferation and effects of risk in the penal realm and also reflects on ongoing debates about the promises and perils of risk. Risk techniques have impacted the practices, discourses, and logics of punishment. Yet they have not triggered the abandonment of rehabilitative approaches (or retributive ones), nor have they replaced human judgment with a rationalized utopia or iron cage. This article also offers several interventions that complicate and further our understandings of risk. First, it highlights the complex entanglements between, on the one hand, actuarial and algorithmic risk instruments and, on the other, subjective, moral, and affective methods of evaluation. Second, it calls for increased attention to the performative effects of risk technologies: to the ways in which assessments not only report on but also create and alter the social world. The article concludes by reflecting on emerging topics and directions for future research.


Black, Lynsey,and Peter Dunne, eds. 2019. Law and Gender in Modern Ireland: Critique and Reform. Hart Publishing.
[More information here]

Law and Gender in Modern Ireland: Critique and Reform is the first generalist text to tackle the intersection of law and gender in this jurisdiction for over two decades. As such, it could hardly have come at a more opportune moment. The topic of law and gender, perhaps more so than at any other time in Irish history, has assumed a dominant place in political and academic debate. Among scholars and policy-makers alike, the regulation of gendered bodies, and the legal status of sexual and gendered identities, is now a highly visible fault line in public discourse.

Debates over reproductive justice (exemplified by the recent referendum to remove the '8th Amendment'), increased rights for lesbian, gay, bisexual and transgender persons (including the public-sanctioned introduction of same-sex marriage) and the historic mistreatment of women and young girls have re-shaped Irish public and political life, and encouraged Irish society to re-examine long-unchallenged gender norms. While many traditional flashpoints remain such as abortion and prostitution/sex work, there are also new questions, including surrogacy and the gendered experience of asylum frameworks, which have emerged. As policy-makers seek to enact reforms, they face a population with increasingly polarised perceptions of gender and a legal structure ill-equipped for modern realities.

This edited volume directly addresses modern Irish debates on law and gender. Providing an overview of the existing rules and standards, as well as exploring possible options for reform, the collection stands as an important statement on the law in this jurisdiction, and as an invaluable resource for pursuing gendered social change. While the edited collection applies a doctrinal methodology to explain current statutes, case law and administrative practices, the contributors also invoke critical gender, queer and race perspectives to identify and problematise existing (and potential) challenges. This edited collection is essential reading for all who are interested in law, gender and processes of social change in modern Ireland.

CordaAlessandro. 2019. “Dealing with potential terrorists within a censure-based model of sentencing”. Pp 161-183 inPenal censure: Engagements within and beyond desert theory, edited by A. Du Bois-Pedain and A. Bottoms. Portland, OR– Oxford: Hart Publishing.
[More information here]

In this chapter, I address the issue of whether and, if so, to what extent, increases in sentences beyond the censure-based deserved amount can be justified by the offender's alleged dangerousness. This topic raises issues concerning censure, proportionality and dangerous offenders that go beyond traditional analyses of whether and when predictions of dangerousness arguably justify use of disproportionately severe punishments. The focus is on preparatory terrorist offences recently enacted in many Western jurisdictions as a response to attacks carried out by terrorist groups or organisations.

Pascoe, Daniel. 2019. Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases. Oxford University Press(Clarendon Studies in Criminology)
[More information here] 

All five contemporary practitioners of the death penalty in the Association of Southeast Asian Nations (ASEAN)— Indonesia, Malaysia, Thailand, Singapore and Vietnam— have performed executions on a regular basis over the past few decades. NGO Amnesty International currently classifies each of these nations as death penalty 'retentionists'. However, notwithstanding a common willingness to execute, the number of death sentences passed by courts that are reduced to a term of imprisonment, or where the prisoner is released from custody altogether, through grants of clemency by the executive branch of government, varies remarkably among these neighbouring political allies. 

Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases explores the patterns which explain why some countries in the region award clemency far more often than do others in death penalty cases. Over the period under analysis from 1991 to 2016, the regional outliers were Thailand (with more than 95% of condemned prisoners receiving clemency after exhausting judicial appeals) and Singapore (with fewer than 1% of condemned prisoners receiving clemency). Malaysia, Indonesia and Vietnam fall at points in between these two extremes. What results is the first research monograph, anywhere in the world, to compare death penalty clemency across national borders using empirical methodology, the latter a systematic collection of clemency data in multiple jurisdictions using archival and 'elite' interview sources. Last Chance for Life is an authoritative resource for legal practitioners, criminal justice policy makers, scholars and activists throughout the ASEAN region and around the retentionist world.


Page, Joshua.April 4, 2019. “I Worked as a Bail Bond Agent. Here’s What I Learned.” The Appeal
[Access it here]

Rubin, Ashley. October 2, 2018. “What a widely attached experiment got right on the harmful effects of prisons.” The Conversation.
[Access it here]

Black, Lynseyand Coleman Dennehy. 2019. “History Now: Capital Punishment – Episode 18.”
[View it here]

Chiarello, Liz. March 2019. “Shared Technology, Competing Logics: How Healthcare Providers and Law Enforcement Agents Use Prescription Drug Monitoring Programs To Combat Prescription Drug Abuse.” P&S Digital Speaker Series.
[View it here]

Goodman, Phil.January 2019. “‘Work Your Story’: Selective Flexible Disclosure (SFD), Stigma Management, and Getting a Job After Prison.” P&S Digital Speaker Series.
[View it here]