LAW AND SOCIETY ASSOCIATION
Collaborative Research Network: Punishment and Society
Hadar Aviram, UC Hastings College of Law, USA
Ashley Rubin, University of Hawaiʻi at Mānoa, USA
RECENTLY PUBLISHED WORKS
October 2020
ARTICLES
Annison, Harry. 2021. “The Role of Storylines in Penal Policy Change.” Punishment & Society Online first. [Access it here]
Bringing policy reform to fruition is an enterprise fraught with difficulty; penal policy is no different. This paper argues that the concept of ‘storylines’, developed within policy studies, is capable of generating valuable insights into the internal dynamics of penal policy change and particularly the ‘commmunicative miracle’ whereby policy participants sufficiently align to achieve reform. I utilize the part-privatization and part-marketization of probation services in England and Wales (‘Transforming Rehabilitation’) as a pertinent case study: a policy disaster foretold, but nonetheless inaugurated at breakneck speed. Drawing on interviews with policy makers, I demonstrate the means by which the ‘rehabilitation revolution’ storyline resolved (at least temporarily) the tensions and problems inherent in the reform project; without which it would have struggled to succeed. We see that storylines play at least three important roles for policy makers: they enable specific policies to ‘make sense’, to ‘fit’ in line with their pre-existing beliefs. They provide a sense of meaning, moral mission and self-legitimacy. And they deflect contestation. In closing, I consider the implications for scholars of penal policy change.
Brown, Michelle. 2020. “Foucault’s crows: Pandemic insurrection in the United States.” Crime, Media, Culture. Online first. [Access it here]
Brown, Michelle. 2020. “ICE comes to Tennessee: violence work and abolition in the Appalachian South.” Citizenship Studies. Online first. [Access it here]
By way of a case study of a key Trump-era Immigration and Customs Enforcement (ICE) workplace raid amidst the arrival of 287(g) programs in Eastern Tennessee, this article places the violence of the carceral state in relation to the ongoing work of emancipation in the American South. It 1) reconceptualizes immigration enforcement as a key locus for intensifying the carceral state’s power via a specific form of violence work and 2) maps the manner in which horizons of abolition take shape in the shadow of this violence. The radical reimagining of immigration as the abolition of policing, detention, and borders is linked to everyday grassroots efforts that seek to counter the pervasive state violence of 287(g) policies. Distinct forms of relational care have slowed and, in some cases, halted the political dominance of carcerality, drawing upon historic emancipatory projects of Southern abolition democracy.
Corda, Alessandro. 2020. “The Transformational Function of the Criminal Law: In Search of Operational Boundaries.” New Criminal Law Review 23(4): 584-635. [Access it here]
It is often maintained that the criminal law is supposed to intervene only when a certain social norm has become so significant within a given society to justify its protection by means of penal sanctions. The criminal law is thus thought to mirror a hierarchy of values it neither shapes nor contributes to building; rather, it is required to stand at least one step behind social change. This article challenges this view, presenting a normative account that contributes to the debate on what is permissible for the criminal law to try to achieve. It does so by defining and theoretically substantiating the “transformational function” of the criminal law. The term refers to the use of criminalization and punishment to change, rather than merely reflect, social norms, attitudes, and beliefs alongside, and combined with, non-penal policy-making tools in contested domains. Four operational conditions of legitimacy are identified and discussed. Within such operational boundaries, this article contends that the criminal law can play an important role in promoting social change—i.e., the establishment of new norms and values—as well as helping the coagulation of norms, attitudes, and beliefs not yet fully entrenched within the societal body.
Corda, Alessandro and Rhys Hester. 2021. “Leaving the Shining City on a Hill: A Plea for Rediscovering Comparative Criminal Justice Policy in the United States.” International Criminal Justice Review. Online first. [Access it here]
Over the past several decades, American penal exceptionalism—the tendency for U.S. penal policies and practices to proudly diverge from those of other Western countries—has severely limited the development of comparative criminal justice research from a U.S. perspective. However, in recent years, a growing consensus that America’s criminal justice policies and practices are too expensive, ineffective, excessively punitive, and often inhumane has laid the ground for a new phase of soul-searching. This article argues for an explicit rediscovering of comparative criminal justice policy in America, which would prove extremely helpful in providing bold yet practicable solutions in the current commendable but unimaginative era of criminal justice reform. We first contend that American exceptionalism is not as embedded in U.S. penal policy and culture as the past few decades might seem to suggest. Second, we discuss the main causes of the gradual demise of the comparative criminal justice enterprise in America. Finally, we discuss two areas of U.S. criminal justice reform suggesting mechanisms of comparative criminal justice policy that should be nurtured: (1) new prison reform initiatives pointing to renewed openness to comparative insights and (2) the growing chorus calling for prosecutorial reform, showing how many of the reform ideas proffered tap into characteristics found in continental systems.
Crewe, Ben. 2020. “The depth of imprisonment.” Punishment & Society. Online first. [Access it here]
Based on a large, comparative study of prisoner experiences in England & Wales and Norway, this article explores the concept of the ‘depth of imprisonment’ – put most simply, the degree of control, isolation and difference from the outside world – in two stages. First, it sets out the various factors that contribute to ‘depth’ i.e. its core components. Second, it outlines the most frequent metaphors used to communicate depth, highlighting the ways in which these metaphors bring into focus a range of ways in which the basic fact of imprisonment – the deprivation of liberty, and the removal of the individual from the community – is experienced. In doing so, the article also makes a case for the adoption of conceptual metaphors as a means of describing prison systems and regimes, and thereby attending to the ways in which prisoners experience some of the most fundamental elements of incarceration.
Fisher, Benjamin W., Ethan M. Higgins, Aaron Kupchik, Samantha Viano, F. Chris Curran, Suzanne Overstreet, Bryant Plumlee, and Brandon Coffey. (2020) “Protecting the Flock or Policing the Sheep? Differences in School Resource Officers’ Perceptions of Threats by School Racial Composition.” Social Problems. Online first. [Access it here]
Law enforcement officers (often called school resource officers or SROs) are an increasingly common feature in schools across the United States. Although SROs’ roles vary across school contexts, there has been little examination of why. One possible explanation is that SROs perceive threats differently in different school contexts and that the racial composition of schools may motivate these differences. To investigate this possibility, this study analyzes interviews with 73 SROs from two different school districts that encompass schools with a variety of racial compositions. Across both districts, SROs perceived three major categories of threats: student-based, intruder-based, and environment-based threats. However, the focus and perceived severity of the threats varied across districts such that SROs in the district with a larger proportion of White students were primarily concerned about external threats (i.e., intruder-based and environment-based) that might harm the students, whereas SROs in the district with a larger proportion of Black students were primarily concerned with students themselves as threats. We consider how these results relate to understandings of school security, inequality among students, racially disparate experiences with school policing, and school and policing policy.
Hanan, M. Eve. 2020. “Invisible Prisons.” UC Davis Law Review 54: 1185-1244. [Access it here]
Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.
This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory. The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions. Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions. As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced.
Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice. To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing.
Harper, Annie, Tommaso Bardelli, and Stacey Barrenger. 2020. “Let Me Be Bill-free: Consumer Debt in the Shadow of Incarceration.” Sociological Perspectives 63(6): 978-1001. [Access it here]
Low-income U.S. households are increasingly burdened by unaffordable debt, with profound long-term economic and health consequences. Households of color are disproportionately negatively affected. This article examines the nexus of this rising indebtedness and mass incarceration through the experiences of a particularly marginalized group, people with mental illness. Drawing on qualitative research with 31 individuals with mental illness and recent incarceration in the city of New Haven, Connecticut, we show how carceral institutions and predatory financial practices intersect to create complex entanglements for poor and vulnerable people. While a growing body of scholarship focuses on criminal justice fines and fees, we highlight other types of debt that add to the overall burden, describing how incarceration deepens people’s existing debts of poverty and adds new debts from in-prison costs and identity theft. After release, those debts complicate the search for housing, employment, and financial stability, leading to further debt, stressing social relationships and reproducing social and economic inequality. The experiences of people with mental illness illuminates structures of marginalization and disadvantage that affect many others involved with the criminal justice system.
Jouet, Mugambi. 2021 (forthcoming). “Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads.” Federal Sentencing Reporter. [Access it here]
The “juveniles are different” doctrine is gaining ground in America. It holds that children, unlike adults, should not receive merciless punishments like life without parole given their immaturity, impulsivity, and limited brain development. The doctrine’s impact has been both significant and modest because it operates in an exceptionally repressive context considering the advent of mass incarceration. Unless construed more broadly, it may help rationalize draconian sentences for adults and cement the status quo.
This Article offers a wider historical and comparative perspective. Over time age has recurrently served to legitimize punitiveness toward children or adults. America has oscillated between deeming that juveniles deserve fewer rights than adults, that they deserve more rights or that they should essentially be treated the same. After diverse paradigm shifts, mass incarceration led to a downward-leveling process whereby juveniles were punished just as ruthlessly as adults. “Juveniles are different” was a reaction to this trend, although punitive assumptions undergird its rigid age carve-outs. This Article calls for a new phase: an upward-leveling process under which juveniles’ emerging right to be free from merciless punishments would apply to everyone. This is the norm in other Western democracies, which have gravitated toward universal human rights and moderate punishment. A broader outlook may spell the difference between a conception of “juveniles are different” casting adults as irredeemable and a stepping stone toward meaningful systemic reform.
Jouet, Mugambi. 2022 (forthcoming). “Death Penalty Abolitionism From the Enlightenment to Modernity.” American Journal of Comparative Law. [Access it here]
The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively. The movement does not emphasize that killing prisoners is inhumane per se. Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs. By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity. This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions. In reality, this Article demonstrates that the significant transatlantic divergence in abolitionism is a relatively recent development. By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms. Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions. It was not before the 1970s and 1980s that a major divergence materialized. As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, its abolitionists largely abandoned humanistic claims in favor of practical ones. Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe. These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law. While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment. But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.
Kupchik, Aaron, F. Chris Curran, Benjamin W. Fisher, and Samantha L Viano. 2020. “Police Ambassadors: Student-Police Interactions in School and Legal Socialization.” Law & Society Review 54(2): 391-422. [Access it here]
The recent influx of police officers into US public schools has reshaped the context and frequency of children's interactions with police. Yet we know little about how the presence of these officers in schools impacts the legal socialization of students, and whether youth of color might be affected or socialized in different ways than white youth. In this study, we analyze data from interviews with school police officers as well as focus group data from school staff, parents, and students that shed light on how school police interact with youth. In particular, school police officers discussed their desire to build relationships with students that instill trust in police among students. Officers discussed their efforts to teach students that police should be trusted and relied on, and that negative views of policing and involvement with the justice system are the result of a negative news media and individual citizens' criminality, respectively. Importantly, officers discussed how they devote particular attention to imparting these lessons on youth of color and others who may see police in a negative light. We consider how these outreach efforts, what we call acting as police ambassadors, might have different impacts on youth of color compared to white youth, given existing racial disparities in interactions with police.
McGlynn-Wright, Anne, Robert D. Crutchfield, Martie L. Skinner, and Kevin P. Haggerty. 2020. “The Usual, Racialized, Suspects: The Consequence of Police Contacts with Black and White Youth on Adult Arrest.” Social Problems. Online first. [Access it here]
Research on race and policing indicates that Black Americans experience a greater frequency of police contacts, discretionary stops, and police harassment when stops occur. Yet, studies examining the long-term consequences of police contact with young people have not examined whether criminal justice consequences of police contact differ by race. We address this issue by examining whether police encounters with children and adolescents predict arrest in young adulthood and if these effects are the same for Black and White individuals. The paper uses longitudinal survey data from 331 Black and White respondents enrolled in the Seattle Public School District as eighth graders in 2001 and 2002. Our findings indicate that police encounters in childhood increase the risk of arrest in young adulthood for Black but not White respondents. Black respondents who experience contact with the police by the eighth grade have eleven times greater odds of being arrested when they are 20 years old than their White counterparts.
Phelps, Michelle S. and Ebony L. Ruhland. 2021. “Governing Marginality: Coercion and Care in Probation.” Social Problems. Online first. [Access it here]
While the scale and consequences of mass incarceration in the United States have been well-documented over the past two decades, sociologists have focused less attention on mass probation and the expansion of community supervision. Originally designed as a rehabilitative alternative to imprisonment, probation represents the largest form of penal control and a critical intersection between criminal justice and welfare—two systems that govern citizens at the margins. We analyze qualitative data from over 100 focus groups conducted in 2016-2017 with adults on probation and probation officers in several jurisdictions across the country to show the enmeshing of coercion and care in probation. Drawing on the concept of carceral citizenship, we detail the duties, burdens, and perverse benefits of supervision across four domains: relationships with probation officers, access to services and programs, time and financial constrictions, and the threat of revocation (or incarceration for non-compliance). We argue that probation provides barebones welfare services for some of the most vulnerable adults, while also imposing the unique harms of a criminal record, burdens of supervision, and risk of incarceration.
Piehowski, Victoria. 2020. “Under the punitive aegis: Dependency and the family justice center model.” Punishment & Society. Online first. [Access it here]
The San Diego Family Justice Center (FJC) model seeks to lessen the burden on domestic violence victims by co-locating social service agencies, law enforcement, and prosecution at one site. Shortly following the inception of the model in 2002, it gained widespread acclaim (and federal funding), spreading the model across the country. Using visual and textual discourse analysis, this paper examines the promotional and procedural material produced by proponents of the San Diego FJC model. FJC materials construct victimhood using discourses of crime control and therapeutic intervention. The resulting discursive formation is that of the passive, dependent battered woman, curable only through robustly punitive state intervention. In this way, FJC materials not only advance a distinct construction of victimhood but also a particular agenda for punishment policy. Extending Jonathan Simon’s contentions regarding the resonance of victim discourse within American society, I argue that therapeutic discourse can bolster the effectiveness of punitive campaigns.
Russell, Emma K. 2020. “Carceral atmospheres on Manus Island: Listening to how are you today.” Law Text Culture24(5): 1-21. [Access it here]
This paper develops a conception of ‘carceral atmospheres’ as a way of framing our encounter with the sound art and archive how are you today, created by the Manus Recording Project Collective (MRPC). Over a period of fourteen weeks in 2018, this work involved the creation and collection of 84 field recordings by six men indefinitely detained on Manus Island by the Australian government. Highlighting the mobile qualities of sound, each 10-minute field recording was sent from Manus to Melbourne and uploaded for playback as part of the Eavesdropping exhibition, originally staged at the Ian Potter Museum of Art in Melbourne in 2018 and later at City Gallery in Wellington in 2019. Following its temporary staging in the gallery – each day of the exhibition featuring a new recording, played on loop – how are you today was developed into an online archive. In this digital archive, the recordings can be played and paused as the listener pleases, but not otherwise controlled through rewinding or fast-forwarding. Each field recording is accompanied by a date, the name of the creator, and a brief textual description of the soundscape it captures.
Slavinski, Ilya, and Becky Pettit. 2021. “Proliferation of Punishment: The Centrality of Legal Fines and Fees in the Landscape of Contemporary Penology.” Social Problems. Online first. [Access it here]
Decades of significant crime declines and recent reductions in the number of people confined in prisons and jails in the United States have been accompanied by the emergence of new, and the resurgence of old, forms of punishment. One of these resurgent forms is the assessment of fines, fees, and costs to those who encounter the criminal legal system. Legal financial obligations (LFOs) have become widespread across the United States and are levied for offenses from alleged traffic violations in some states to felony convictions in others. Their emergence has been heralded by some as a less punitive alternative to spending time in prison or jail but recognized by others as uniquely consequential for people without the means to pay. Drawing on data from 254 counties in Texas, this article explores the emergence and enforcement of LFOs in Texas, where LFOs play a particularly prominent role in sanctions for alleged misdemeanor offenses and serve as an important source of revenue. Enforcement of LFOs varies geographically and is related to conservative politics and racial threat. We argue that LFOs are a defining feature of a contemporary punishment regime where racial injustice is fueled by economic inequality.
Ward, Geoff, Nick Petersen, Aaron Kupchik, and James Pratt. 2021. “Historic Lynching and Corporal Punishment in Contemporary Southern Schools.” Social Problems 68(1): 41-62. [Access it here]
This study examines how corporal punishment in contemporary public schools, a disciplinary practice concentrated in southeastern U.S. states, relates to histories of lynching in the region. Using school-level data from the U.S. Department of Education, we examine these relationships in a series of multi-level regression models. After controlling for numerous school- and county-level factors, we find an increased likelihood of corporal punishment for all students in counties where greater numbers of lynchings occurred, and that lynching is particularly predictive of corporal punishment for black students. Consistent with prior research associating historic lynching with contemporary violence, these results suggest general and race-specific legacies for violent school discipline. We consider potential mechanisms linking histories of lynching with school corporal punishment, and implications for research and policy.
BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS
Kaufman, Nicole and Megan Welsh. 2021. “Contested Forms of Knowledge in the Criminal-Legal System: Evidence-Based Practice and Other Ways of Knowing Among Frontline Workers.” Pp. 397-421 in Luken, Paul C., and Vaughan, Suzanne (eds.), The Palgrave Handbook of Institutional Ethnography. Palgrave Macmillan. [More info here]
Rubin, Ashley T. 2021. The Deviant Prison: Philadelphia’s Eastern State Penitentiary
and the Origins of America’s Modern Penal System, 1829-1913. Cambridge University Press. [More info here]
Early nineteenth-century American prisons followed one of two dominant models: the Auburn system, in which prisoners performed factory-style labor by day and were placed in solitary confinement at night, and the Pennsylvania system, where prisoners faced 24-hour solitary confinement for the duration of their sentences. By the close of the Civil War, the majority of prisons in the United States had adopted the Auburn system - the only exception was Philadelphia's Eastern State Penitentiary, making it the subject of much criticism and a fascinating outlier. Using the Eastern State Penitentiary as a case study, The Deviant Prison brings to light anxieties and other challenges of nineteenth-century prison administration that helped embed our prison system as we know it today. Drawing on organizational theory and providing a rich account of prison life, the institution, and key actors, Ashley T. Rubin examines why Eastern’s administrators clung to what was increasingly viewed as an outdated and inhuman model of prison - and what their commitment tells us about penal reform in an era when prisons were still new and carefully scrutinized.
PUBLIC SCHOLARSHIP
Jouet, Mugambi. 2020. “Reading Camus in Time of Plague and Polarization.” Boston Review. [Access it here]
On the sixtieth anniversary of Albert Camus's death, the article discusses how he addressed criminal justice and other key issues relevant to the evolution of modern society. The article further offers a Law & Literature perspective given Camus's influential writings on the death penalty.
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