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]