Members' Publications: November 2019 Edition

As compiled by Kaitlyn Quinn

LAW AND SOCIETY ASSOCIATION

Collaborative Research Network: Punishment and Society

Organizers:

Hadar Aviram, UC Hastings College of Law, USA

Ashley Rubin, University of Hawaiʻi at Mānoa, USA

RECENTLY PUBLISHED WORKS

November 2019

ARTICLES

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]

BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS 

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.

Members' Publications: June 2019 Edition

As compiled by Kaitlyn Quinn

LAW AND SOCIETY ASSOCIATION

Collaborative Research Network: Punishment and Society

Organizers:

Hadar Aviram, UC Hastings College of Law, USA

Ashley Rubin, University of Toronto, Canada

RECENTLY PUBLISHED WORKS

June 2019

ARTICLES

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 penal‐legal field, with purported transformative effects. This article draws from a field research project examining the on‐the‐ground implementation of the federal sentencing guidelines to explore how the guidelines' numbers‐based logic is both articulated and reconstituted by legal actors in the adversarial process. Complementing macro‐level work that examines the transformative effects of quantification at the social‐structural level, I take a micro‐level, empirically grounded approach that analytically focuses on day‐to‐day 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 organizational‐level 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 well‐known gap between law on the books and law in action often casts doubt on the significance of changes to law on the books. For example, the rise and fall of penal technologies have long been considered significant indicators of penal change in socio‐historical analyses of punishment. Recent research, however, has challenged the significance of apparently large‐scale penal change of this kind. This article clarifies the significance of penal technologies' rise and fall by offering an alternative account of formal penal change, introducing the analytical concept of “legal templates,” structural models of legal activity (e.g., punishment) available for authorization and replication across multiple jurisdictions. Analyzing punishment's templates explains how new penal technologies can be important harbingers of change, even when they fail to revolutionize penal practice and are not caused by a widespread ideological shift. This article locates the significance of punishment's legal templates in their constitutive power—their ability, over the long term, to shape cognitive‐cultural expectations about what punishment is or should be. This power appears only when the template is widely adopted by a plurality of jurisdictions, thereby becoming institutionalized. Ultimately, these institutionalized templates define the scope of future punishment.

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.

BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS 

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.

Corda, Alessandro. 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.

PUBLIC SOCIOLOGY

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]

ONLINE TALKS

Black, Lynseyand Coleman Dennehy. 2019. “History Now: Capital Punishment – Episode 18.”

(https://vimeo.com/321220014)

[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]

Members' Publications: February 2019 Edition

As compiled by Katie Quinn:

RECENTLY PUBLISHED WORKS 

February 2019 

ARTICLES 

Brangan, Louise. (Advanced Access) Civilizing Imprisonment: The Limits of Scottish Penal Exceptionalism. The British Journal of Criminology, azy057, https://doi.org/10.1093/bjc/azy057 

BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS 

Schoenfeld, Heather, Durso, Rachel, & Albrecht, Kat. (2018) Maximizing Charges: Overcriminalization and Prosecutorial Practices During the Crime Decline, in Austin Sarat (ed.) After Imprisonment (Studies in Law, Politics and Society, Volume 77) Emerald Publishing Limited, pp.145 – 179. [Access it here] 

Deflem, Mathieu (ed.). (2019) The Handbook of Social Control. Hoboken, NJ: Wiley Blackwell. [More information here] 

Are you a criminologist or a sociologist? Rob Werth Responds

Criminologist or sociologist? (Or, on the difficulties and limits of labels, whether self- or other-oriented)

By Robert Werth, Rice University

Am I a criminologist or a sociologist?  The prompt I was given for this brief piece was more nuanced than this. But, as I interpreted it, this question is at the heart of the prompt.  I’m going to provide a few answers (or thoughts really) to this question, but I will then proceed to both critique and complicate my answers. As this suggests, I have several responses to this question, and I find none of them especially satisfying or final.  

Returning to the question, “are you a criminologist or sociologist”, I would like to respond: “yes”.  This feels somewhat unsatisfying, however. At first glance, it seems as if my response side-steps the question, although I don’t think it does. But, I think a real problem with an answer of “yes” to this question is that it is a response of someone who wants to eat their cake and have it too, as the saying (sometimes) goes. Sociology and criminology, while overlapping and even entangled, are not isomorphic with one another. Further, I can certainly think of myself as both sociologist and criminologist – and I do tend to think of myself as both – but is this how I am always going to label, present and (dare we say) market myself to others?  And is this how I will be perceived and understood by others?     

Another possible response, and one that I have used on occasion: “I think of myself as a law and society scholar who studies issues of crime and punishment.”  This response also appears as if it is attempting to side-step the prompt. Although, as before, I do not think it does. Rather than circumvent the question of sociology or criminology, I’ve actually added another element to it – law and society – thereby making the question even more complicated and difficult to answer. 

So, three paragraphs into my reflection on this question, and all I’ve managed to do is add the matter of law and society to it, leaving me with a response of: “well, I am a sociologist, criminologist and law and society person”.  Furthermore, I would probably need to add another element to it, as I am getting increasingly interested in, and thinking with, Science and Technology Studies. However, labeling myself as a sociologist, criminologist, law and society person, and STS person is prohibitively long and perhaps confusing; or, at the least, is likely to produce the idea that I am confused, undecided or just greedy. 

However, the way I most often think and talk about this issue (what do I study? how can I describe myself in a way that is concise yet accurate?) is by emphasizing the topics, phenomena and questions that I focus on and, hence, deemphasizing the disciplines/fields/areas that presumably frames those interests. Thus, my most common, albeit broad, description of myself is:  An interdisciplinary scholar interested in crime, punishment, and law. (Or, an interdisciplinary scholar interested in the ways in which societies understand and attempt to govern crime, ‘criminality’, and dangerousness.)  Although I sometimes replace interdisciplinary scholar with sociologist. This is, I suspect, partially a product of my departmental locationality; since graduate school my two academic positions have both been in sociology departments (Quinnipiac and now Rice University), so it often makes sense and seems easier to refer to myself as a sociologist.

However, I think that ultimately, I consider myself an interdisciplinary scholar. This stems from the fact that my Ph.D. is not in sociology, rather it is from the interdisciplinary Criminology, Law and Society program at the University of California, Irvine. But this also stems, as this overly convoluted reflection suggests, from regularly interacting with and drawing from multiple academic arenas. Sociology, criminology and law and society are the most prominent ones, but, to a lesser degree, I also draw from STS, anthropology and philosophy. 

While I do think of myself as an interdisciplinary person, if pushed (for instance, by a prompt about this topic), I would say that within my interdisciplinarity, sociology is the discipline that I have been most influenced by. However, this statement necessitates a final caveat. It depends on making a distinction between discipline and field. That is, I am thinking of disciplines as traditional, long-standing academic disciplines – such as sociology, anthropology, political science, economics, etc. And I am thinking of fields – such as criminology, law & society, and STS – as more recent areas that cut across and complicate these disciplines. This distinction, shaped by perceived tradition (and, of course, authority), perhaps muddles as much as it clarifies. And it may well be in the process of obsolescence. I am certainly in favor of complicating disciplinary boundaries through cutting across, experimenting with, and stretching/moving them. 

As such, I prefer to orient my descriptions of what I am/do around the topics, issues, puzzles and questions that animate my research and teaching, rather than through the prism of academic disciplines or fields, whether they be long-established, comparatively new or emergent.  

Are you a criminologist or a sociologist? Michael Walker Responds

I've never considered myself anything other than a sociologist, but that's not in opposition to how criminologists or criminal justice scholars might think of themselves. My graduate training is in sociology, and my general approach to crime, crime control, and the criminal justice system is to see all three as opportunities to investigate the kinds of matters that interest me anyhow: stratification, social control, identities, emotion, and so forth. In fact, I only recently became aware of tensions between some criminologists, sociologists, and criminal justice scholars. Part of the issue, as I understand it, has to do with increases in specialization: the generalist is a dying breed of scholar. On this point, perhaps more interdisciplinary work like that of law and society scholars will help to bridge the divide between sociology, criminology, and criminal justice.

Are you a criminologist or a sociologist? Sara Wakefield Responds

1. the tensions surrounding how a person is labeled (sociologist or criminologist), especially for people who could be labeled both

I have no idea how I am labeled. Or put better, if I conducted the most narcissistic nationally-representative survey ever of sociologists and criminologists in order to ask, I’m not certain a clear answer would emerge. Aside from a healthy number of “Sara who?” responses, I suspect the sociologists would split a bit, the criminologists would call me a sociologist, and age of reporter would matter. I remember a time when I cared about the label – I strongly identified as a sociologist early on – but I no longer have a stake in being one or the other. Both is probably right but the best answer is that it depends on who else is in the room (context matters, who knew?).

That I’m not worried about it anymore is a function of tenure, an idiosyncratic set of opportunities and constraints as one half of an academic couple, and some fairly large changes in my areas of interest since I received my PhD. That said, it is clear to me that some heterogeneity in how other people define me probably limited me early in my career but now benefits me in demonstrable ways. Clear ‘branding’ seems important for junior scholars but it becomes limiting pretty fast.

Right before tenure and certainly after it, I noticed my tendency to put the criminology hat on among sociologists and socio-legal scholars and to put the sociology hat on among criminologists and economists. [It’s a tossup with psychologists, no idea why.] A charitable interpretation of this tendency is that I’ve been lucky through the windy path of my career and friendships to be exposed to a variety of scholars, projects, and literatures and that I most enjoy learning from those who form a core in their own areas/disciplines. The less charitable interpretation of this is that I’m a (hopefully kind) contrarian at heart, that I lack the discipline (pun intended) to become part of any core, or that I really and truly hate working alone. I’m okay with any of those interpretations.

2. what other people make of these tensions and how they navigate them

The labels are important – after all, someone has to form the core and police the boundaries, yes? There is also a place for criticism of those boundaries and upending long-held assumptions. Especially for junior scholars, ‘branding’ yourself as any one thing is hard enough, without adding in multiple audiences, constituencies, and fields. I’m less certain that remaining in your core after the first few years is required for career success everywhere and I harbor suspicions that it is not good for social science, especially if your interests clearly cross-cut a number of fields. One of the things I like about criminology, criminal justice, and socio-legal studies (broadly defined) is that they are much less invested in policing boundaries because we’ve always borrowed from many other disciplines – this is why generalizations about these fields more often than not scream ignorance to me. Sociology is much the same though – it’s everything and nothing so good luck figuring out where it stops and starts. It strikes me that the main challenge for those of us in between is to consistently spend enough time in each space so you can talk like an insider without anyone laughing too hard.

I now think less about how to navigate these minefields (or worse, planting my flag in them) and instead I’m simply trying to be a person who sees them clearly. Once you see them, you can quietly navigate around them (and, if you’re lucky, say something useful by pointing them out). I don’t think this necessarily means you can’t stick to a topic or you constantly have to reinvent yourself – I’ve been unsuccessfully trying to stop writing about incarceration for at least four years now – but if you wouldn’t re-write everything you wrote five years ago a little differently today, you’re doing something wrong. The main benefit of straddling multiple fields is you’re less likely to get stuck and miss the important stuff.

3. context of the job market, publication, or other opportunities like speaker series or field-level service

JOB MARKET: I struggled with these questions because I think the world has changed a lot since I was on the market out of grad school. I’m also less certain that the idiosyncrasies of my current situation translate well to others, especially junior scholars. Suffice it to say, I’ve applied to both crim and soc programs (out of grad school and since) and received offers from both (out of grad school and since). I spent a long time trying to write about this well but I ended up cutting all of it and would simply say that I am always happy to talk to people about applying to crim programs and you don’t have to know me in order to set up coffee or a call.

Here’s what I will say: Crim programs are as heterogenous as sociology. The question I get most often from sociologists/law & society scholars applying to crim programs is some version of “Will they make me be a ‘C’riminologist or only publish in crim journals?” The short answer is no. The long answer is it depends (see below).

PUBLICATIONS: I seem to specialize in writing things published in weird places that some people read. Writing a book was great – I found writing one simply solidified the perception that I occupy some sort of interstitial space between criminology and sociology, thereby freeing me from the constraints of both. I wish I could say I planned that – I didn’t and am astonished to find myself writing a second one – but it’s fantastic. I have watched colleagues and friends in Crim/CJ and in Sociology get pressure to publish in Criminology or ASR or whatever but I’ve never been subject to the same pressures overmuch (or I’m so obtuse that I failed to notice it). Some departments really care about this but it seems like they only care about it for some people. I try and think broadly about who to work with and what I can learn from them – insofar as people may think of me as both a sociologist and a criminologist, I suspect it reflects 1) a lot of effort to stay involved in sociology while working in a crim program and 2) collaboration and friendship networks across both fields because it sure isn’t where I publish or don’t.

TALKS AND SERVICE: This is the one context you asked about where I have been planful, rather than just doing what I do and being relieved it worked out. I give a fair number of talks and I spend a lot of time at conferences. I navigate conferences very differently based on how close or far they are to my “home” areas, however. At ASA and ASC, my “home” conferences, I do not often attend panels beyond my own and those of my students – I’m there to do core work and I’m usually swamped. These are unfortunately the last places where I will learn new things or challenge my assumptions. I am involved in my groups and, as a result, I am fairly active in volunteer and elected service positions in both organizations.

About every three years, I start feeling overly narrow, out of date with advances in other areas, and bored/disagreeable. As a solution, I make sure to get out of my bubble. Six years ago, I solved this problem by diving in to a massive new data collection with a bunch of people I’d never worked with before and who do work really different than my own. Three years ago, I solved this problem by going to Oxford for a semester. This year I’m solving it by attending PAA and LSA. At LSA and PAA, I’m there to learn, attend panels, challenge what I think I know, and go as far afield as possible. In none of these spaces do I expect to run the show, get elected to something, or drive the conversation but I always learn and you’ll usually see it in my work a few years later. All this to say, there are benefits of getting out of your space, with some humility.

Are you a criminologist or a sociologist? Chris Smith Responds

During one of my first American Society of Criminology meetings, I attended a “Students meet Scholars” session. It was a great session, a fascinating conversation, and the graduate students (myself included) were asking a lot of questions about the intellectual trajectory of the topic. After the session, I was waiting in line for the restroom with one of the eminent scholars from the panel, who said to me, “You must be a sociologist.” (I assumed her declaration was based on my questions from the session.) I awkwardly laughed and affirmed that I was getting my PhD in sociology. Since that interaction, I have been a bit stuck on what the “you must be a sociologist” versus “you must be a criminologist” labels mean, what they are good for, and why we can’t be both. 

I study crime and inequality, some version of the word “crime” appears in almost every class I have ever taught, I publish in criminology and sociology journals, and I attend the ASC and the ASA. The ASC is cheaper and has more free wine, so I like it better. The late criminologist Bob Bursik (PhD in sociology) once told me, “ASA is a bunch of snobs.” I often agree with his sentiment. I tell my sociology graduate students to study crime because there are more academic jobs. The National Science Foundation and the Department of Justice funded my dissertation research. When I first applied to jobs as a PhD candidate, I applied to sociology and criminology departments. I got offers in both, but I took a sociology job. Being in a sociology department became important to me because I get excited about the breadth of the intellectual conversations that happen in sociology and because some of my classes don’t have the word “crime” in them. Being in a sociology department also helped me realize that I don’t want to do research that is not about crime and inequality.

The biggest distinction for me between the labels of criminologist and sociologist is in the orientation to theory. It is hard to publish in sociology without strong theoretical frameworks and/or contributions. To achieve this, often our studies of crime and inequality represent a case of some larger social process. It is hard to publish in criminology without any theory, but there are fewer theoretical toolkits to draw from in criminology. Plus, criminology includes a lot more theory testing than theory developing. This slightly different orientation toward theory can come at a cost. Criminology has the space to be more applied than sociology and can be more relevant to policy. Sociologists often want their research to be applied, but the reality is that our long theoretical frameworks can be a burden to generalist audiences. Long, complicated understandings of inequality or other social problems don’t often lend themselves to digestible suggestions for change.

Historically, criminology was a part of sociology – a lens through which to study society. The label of criminologist has become more divisive because of the growth and funding of criminal justice departments across the US academy. Criminal justice emphasizes solving crime (or lowering crime rates) more so than the broader study of crime. The merger of criminology with criminal justice has meant that criminology is seen as more conservative, but the merger has also meant that some outsiders miss the strong sociological methods and theoretical orientations happening in the work of great criminology. 

My forthcoming book, Syndicate Women, is on gender inequality in organized crime networks from Prohibition Chicago. I have received positive and negative feedback from sociologists and criminologists on the research. A few criminologists have asked me why I want more women in organized crime. A few sociologists have asked me how the book’s theoretical explanation can be applied to any case other than crime. Both of these questions reveal the worst of these labels. My book will be classified as criminology and sociology—probably in alphabetical order. I hope criminologists and sociologists (as well as gender scholars, legal scholars, historians, and network scientists) will read it and find something interesting and useful. My research is better because I read broadly and because I try to do both criminology and sociology well. 

Chris M. Smith, Assistant Professor of Sociology, University of California, Davis

January 21, 2019