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.
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.
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.
