Member Publications: April 2022 Edition

 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 

April 2022

 

ARTICLES

Cooper-Knock, S. J. and Gail Super. (equal co-authors) 2022. “Civic-Led Banishment in South Africa: Punishment, Authority, and Spatialised Precarity.” Antipode 54(1): 174-196. [Access it here]

Civic-led banishment, a fundamentally spatial punishment, is an understudied phenomenon in South Africa and beyond. We define it as “a punitive spatial practice, enacted by non-state actors in response to alleged criminality or deviance, which attempts varying degrees of socio-spatial expulsion over time”. This definition lays the framework for a socio-spatial analysis of punishment, and yields insights into the exercise of socio-spatial control in public and private space. We emphasise the specific challenges associated with banishment, together with the relationship between space, punishment, public authority, and sovereignty. We demonstrate how “negotiations” around banishment trade off two forms of intersecting precarity: those faced by residents in informal settlements and the potential precarity of public authorities. Finally, we argue that an exploration of all forms of punishment through the lens of socio-spatial expulsion enables us to tap into conversations around penal abolitionism.

Davis, Andrew P., Michael Gibson-Light, Eric Bjorklund, and Teron Nunley. 2022. “Institutional Arrangements and Power Threat: Diversity, Democracy, and Punitive Attitudes.” Justice Quarterly. Online first. [Access it here]

This research synthesizes studies on crime and punishment, work in political sociology, and race and ethnicity scholarship in order to theorize and empirically examine the democratic foundations of group threat theory. We argue that ethnic diversity is particularly threatening when coupled with robust democratic institutions that empower individuals to pose challenges to the extant political and social order. Making use of recent measurement advances in the study of democracy, this article uses multi-level modeling techniques across 39,926 survey respondents in 27 countries from the fifth wave of the European Social Survey to test the extent to which punitive attitudes toward criminals were associated with interaction effects of an index of ethnic diversity and democratic quality. Results strongly confirm our theoretical predictions that robust democratic institutions condition the effect of ethnic fractionalization on punitive attitudes in Europe.

de Souza, Poppy and Emma K. Russell. 2022. “Sensing the border(s): Sound and carceral intimacies in and beyond indefinite detention.” Crime, Media, Culture. [Access it here]

This article examines a sound-based digital project co-created with refugees and asylum seekers held in indefinite detention in Australia and Papua New Guinea to advance understandings of the sensory violence of borders – and resistance to borders – and their reordering of intimate realms. In where are you today (2020), refugees/asylum seekers catalogued their carceral environments in 10-minute sonic vignettes which were distributed to listeners daily via text message, for 30 consecutive days. Drawing on sensory methodologies and feminist orientations towards the intimate, the article considers how this sound project alerts us to an alternative sensory politics attuned to the quiet, quotidian and exhausting labour of resisting Australia’s racialised border regime. Through a close listening to selected recordings, we argue the intimacies shared through where are you today produce knowledge about embodied practices of care, breath, touch and waiting in indefinite detention. Networked, transborder sound projects can unsettle both incarcerated and non-incarcerated subjects’ relationships to their environments, opening affiliative possibilities for coming into relation with the border(s) in new ways. We conclude that the project’s creators forge and sustain carceral intimacies within and despite the border’s affective violence, and that sound is a particularly affective and evocative means of conveying and creating these intimacies, in and beyond indefinite detention.

Gibson-Light, Michael. 2022. “Remote Control: Horizontal Surveillance and the Gendering of Carceral Punishment.” Theoretical Criminology. Online first. [Access it here]

Research traditionally suggests that men incarcerated in the USA regard horizontal surveillance—that is, monitoring the behaviors of other prisoners—as antithetical to notions of masculinity behind bars. Yet, following an 18-month ethnography in a US prison for men, this article reveals that the imprisoned may in fact embrace prisoner-on-prisoner monitoring tied to labor. It details how participants in this institution sought out peer surveillants who had the power to grant referrals to more desirable jobs. Within prison worksites, individuals further policed peers’ production and service quality. Labor-based horizontal surveillance was integral to performances of masculinity related to employment status and work ethic. Drawing on labor scholarship as well as studies of surveillance in other penal settings, this article reveals how supervision maps onto gendered beliefs about work, offending, and contemporary American corrections in ways that contribute to carceral agendas and broader systems of control.

Jiang, Jize and Jingwei Liu. 2022. “Penal Welfare or Penal Sovereignty? A Political Sociology of Recent Formalization of Chinese Community Corrections.” Punishment & Society. Online first. [Access it here]

In this study, we address two observed gaps in existing accounts on Chinese community corrections (hereafter CCC): 1) lack of multilevel understanding of this penal institution’s local variations in a highly centralized penal regime; 2) inadequate scrutiny of political logics of, and the authoritarian state’s significance in, its recent formal introduction. Those limits may inhibit adequate understandings of state power and punishment in an authoritarian polity like China. To that end, we argue for a multilayered and hybrid conceptualization of CCC as an assemblage of penal welfare and penal sovereignty to understand CCC’s formation and function. Fracturing the holistic entity of CCC, our study challenges the approach to viewing it as a system of singular logics and unifying structure, and contrasts three modes of operational practices across localities—bureaucratic, professionalization, and technology-dominant models. Moreover, our analysis of its political functions suggests that in effect penal sovereignty subjugates penal welfare within contemporary Chinese penality. Far from heralding the full-fledged rise of Chinese penal welfare, this legal formalization represents a space created for the authoritarian state to penetrate political ideologies, and to reclaim, consolidate and exercise sovereign power through managerial penal strategies in a rapidly developing and differentiating society.

Jouet, Mugambi. forthcoming 2022. “The Day Canada Said No to the Death Penalty in the United States: Innocence, Dignity, and the Evolution of Abolitionism.” UBC Law Review. [Access it here]

Sociolegal scholarship has explored why the United States stands alone among Western democracies in retaining capital punishment. Yet the focus on America-Europe comparisons has obscured the twentieth anniversary of a landmark Canadian decision, United States v. Burns, barring the extradition of two men wanted for capital murder in America. Intriguingly, it emulated the evolution of American abolitionism by centering on the risk of executing the innocent; and declining to recognize capital punishment as an inherent violation of human dignity as in European law. This Article situates these events in their wider historical, societal, and comparative context, which offers a stepping stone to theorize key questions regarding the evolution of prisoners’ rights.

Miscarriages of justice have always existed and have been a constitutive issue in Western civilization, from the trials of Socrates and Jesus to the birth of the English of Bill of Rights onto the French Revolution and beyond. The tendency to cast innocence as a newfound problem has a neglected underside, as it partly stems from the “tough-on-crime” movement’s rise in American society since the 1980s. As empathy toward the guilty became illegitimate, the anti-death-penalty movement gravitated toward the innocent. Given the United States’ capacity to influence foreign debates, this approach found its way into the Supreme Court of Canada’s reasoning, thereby exemplifying how social actors may be tempted to avoid the normative issues surrounding the death penalty by focusing on innocence. However, abolitionism has had a humanistic component since the Enlightenment, which spurred a larger normative evolution recognizing human dignity as a benchmark of punishment in liberal democracies. Eclipsing human dignity from the death-penalty debate may thus reflect ambivalence toward prisoners’ rights, as attitudes toward capital punishment and imprisonment are intertwined. Despite having abolished the death penalty several decades ago, Canada and European nations remain ambivalent toward protecting prisoners’ human dignity. Meanwhile, the de-legitimization of dignity in the United States helps explain why mass incarceration parallels capital punishment’s retention. Dignity is nonetheless gaining traction as a legal principle in these societies and worldwide. At this critical juncture, the Article provides a window into under-studied chapters of history by analyzing the intersection of dignity, innocence, and liberal democracy.

Jouet, Mugambi. 2021. “Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads.” Federal Sentencing Reporter 33(4): 278-84. [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.

Kupchik, Aaron. 2022. “Rethinking School Suspensions.” Contexts 21(1): 14-19. [Access it here]

When used too frequently, exclusionary school punishment like out-of-school suspensions are ineffective and harmful. The harms to students are clear, though excessive use of school suspensions also impacts entire schools, students’ families, and communities. Because youth of color are at greater risk of school punishments, these harms disproportionately limit their life opportunities and exacerbate racial inequality. To better understand how and why we punish students the way we do, sociologists need to understand school punishment as rooted in a historical legacy of racial oppression and denial of educational opportunities to Black children.

Phelps, Michelle S., Christopher E. Robertson, and Amber Joy Powell. 2021. “‘We're still dying quicker than we can effect change’: #BlackLivesMatter and the Limits of 21st-Century Policing Reform.” American Journal of Sociology 127(3): 867-903. [Access it here]

Black Lives Matter protests in the mid-2010s thrust police violence into the public spotlight, highlighting the stark racial divide in experiences with law enforcement and prompting a wave of police reform. We examine how residents in low-income neighborhoods on the Northside of Minneapolis, Minnesota, made sense of this focus on police violence and reform across racial lines. Drawing on interviews with a diverse sample of 112 adults, we show that there was broad consensus on the social problem of racialized police violence, but Black residents perceived the problem as more severe, more persistent, and in need of more dramatic forms of racial redressment than their white neighbors.

Phelps, Michelle S., Anneliese Ward, and Dwjuan Frazier. 2021. “From Police Reform to Police Abolition? How Minneapolis Activists Fought to Make Black Lives Matter.” Mobilization: An International Quarterly (Special Issue on the Black Lives Movement) 26(4): 421–441. [Access it here]

The murder of George Floyd by Minneapolis Police Department (MPD) officers in 2020 was a watershed moment, triggering protests across the country and unprecedented promises by city leaders to “end” the MPD. We use interviews and archival materials to understand the roots of this decision, tracing the emergent split between activists fighting for police reform and police abolition in the wake of the initial Black Lives Matter (BLM) protests in Minneapolis. We compare the frames used by these two sets of movement actors, arguing that abolitionists deployed more radical frames to disrupt hegemonic understandings of policing, while other activists fought to resonate with the existing discursive structure. After years of police reform, Floyd’s death and the rebellion that followed gave abolitionist discourses more resonance. In the discussion, we consider the future of public safety in Minneapolis and its implications for understanding frame resonance in Black movements.

Rennie, Ailie and Ben Crewe. 2022. “‘Tightness’, autonomy and release: The anticipated pains of release and life licencing.” The British Journal of Criminology. Online first. [Access it here]

This article explores how men serving mandatory life sentences in England and Wales anticipate life after release and the imposition of a life licence. It reports the various ways that lifers feared licencing as being exceedingly ‘tight’ and restrictive, sometimes resulting in them retreating from release altogether. At the same time, some participants reported a motivation to embrace the ‘tightness’ of their impending licence conditions, and use penal power as a means of structuring life on release. Whether they resisted or embraced penal intervention, all participants altered their aspirations to what seemed achievable upon release when subject to numerous conditions. Specifically, the article argues that the anticipation of a particular mode of penal power has a material effect on lifers’ approach to release.

Rountree, Meredith M. and Mary R. Rose. 2021. “The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns.” Buffalo Law Review 69(5): 1237-1328. [Access it here]

Jurors exercise unique legal power when they are asked to decide whether to sentence someone to death. The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are best able to “express the conscience of the community on the ultimate question of life or death.” Manylower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential.

Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury. Aided by a novel dataset of federal capital jury verdict forms, this Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder.

The data show that jurors consistently find all three forms of evidence highly relevant to their mitigation deliberations. Further, two of these—execution impact evidence and co-participant sentences—have a statistically significant correlation with the jurors’ sentencing decision. This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral—rather than legalistic—question, appropriately recognizing the jury’s normative role.

Super, Gail. 2022. “Cars, Compounds and Containers: Judicial and Extrajudicial Infrastructures of Punishment in the ‘Old’ and ‘New’ South Africa.” Punishment & Society. Online first. [Access it here]

This paper examines non-state infrastructures of vigilante violence in marginalized spaces in South Africa. I argue that car trunks, shacks, containers, and other everyday receptacles function as the underside of official institutions, such as prisons and police lock-ups, and bear historical imprints of the extrajudicial punishments inflicted on black bodies during colonialism and apartheid. I focus on two techniques: forcing someone into the trunk of a vehicle and driving them around to locate stolen property, and confinement in garages, shacks, containers, or local public spaces. Whereas in formerly ‘whites only’ areas, residents have access to insurance, guards, gated communities, fortified fences, and well-resourced neighbourhood watches, in former black townships and informal settlements, this is not the case. Here, the boot, the shack, the shed, the car, and the minibus taxi play multiple roles, including as vectors and spaces of confinement, torture, and execution. Thus, spatiotemporality affects both how penal forms permeate space and time, and how space and time constitute penal forms. These vigilante kidnappings and forcible confinements are not mere instances of gratuitous violence. Instead, they mimic, distort, and amplify the violence that underpins the state's unrealized monopoly over the violence inherent in its claims to police and punish.

Super, Gail and Ana Ballesteros Pena. 2022. “Violence and Bordering on the Margins of the State: A View From South Africa and the Southern Border of Spain.” Theoretical Criminology. Online first. [Access it here]

This article examines expulsions in and around the Spanish enclaves of Ceuta and Melilla and in informal settlements in former black townships in South Africa. These violent bordering processes expose the violent injustices that constitute the boundaries of lawful (liberal) law, and the violence that sovereigns use to secure territories. Drawing on Walter Benjamin we make three main theoretical arguments. First, that the bordering processes in our case studies are instances of law (and State) preserving violence. Second, that absence and responsibilization are central techniques for invisibilizing the role of violence in preserving law, and that abdication of jurisdiction is key to the exercise of state sovereignty. Third, that when the State preserves itself through sharing its monopoly over violence the fictitious distinction between law and violence collapses. We use the term ‘borderline lawful violence’ to highlight the precarious nature of the boundary between lawful and unlawful violence.

Wulff, Stephen. 2022. “Flipping the ‘New Penology’ Script: Police Misconduct Insurance, Grassroots Activism, and Risk Management-Based Reform.” Law & Social Inquiry 47(1): 162-204. [Access it here]

Through a multi-method qualitative case study, I examine the failed 2016 ballot campaign of the Committee for Professional Policing (CfPP), a police accountability group in Minneapolis, Minnesota. In attempting to make Minneapolis the first city nationwide to require police to carry professional liability insurance, the CfPP turned the logic of Malcolm M. Feeley and Jonathan Simon’s “new penology” paradigm onto police. Their thesis argues that a contemporary penal shift occurred away from rehabilitation toward managing aggregates of dangerous criminal categories through risk management approaches. I extend their thesis in a new direction by examining how—in the emerging age of “algorithmic risk governance”—social movement organizations, like the CfPP, are starting to invert the new penology onto criminal justice personnel. In flipping the script, the CfPP called for a new private insurance market using mandatory police misconduct insurance to manage aggregates of dangerous police officers. After highlighting how the CfPP developed new penological objectives, discourses, and technologies, I discuss the implications of grassroots groups adopting and redefining traditional penal logics and propose future research avenues.

BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS 

Corda, Alessandro and Johannes Kaspar. 2022. “Collateral consequences of criminal conviction in the United States and Germany.” Pp. 392-437 in Core Concepts in Criminal Law and Criminal Justice. Vol. 2, edited by Kai Ambos, Antony Duff, Alexander Heinze, Julian Roberts, and Thomas Weigend. Cambridge: Cambridge University Press. [More information here]

The chapter focuses on so-called collateral consequences of criminal conviction. Especially in the US, these are usually defined as civil restrictions and disabilities flowing from a conviction burdening individuals during the re-entry process. However, we argue, the term should also encompass those penalties and measures that are additional or ancillary to the main punishment, and yet internal to the criminal law and imposed at the sentencing stage of the criminal process. The chapter maps the rise, development and current state of collateral consequences, focusing in particular on the United States and Germany. We begin with a systematic overview of the two legal traditions considered, outlining the history and reality of collateral consequences and analysing their nature and functions (both stated and latent). After discussing the classification and understanding of collateral sanctions in the Anglo-American and German contexts, we focus on what safeguards exist and are applied (or neglected) in the two legal orders to prevent such penalties from having a disproportionate and cumulative burdensome effect on ex-offenders. We conclude with a discussion of the theoretical rationales offered to justify collateral consequences, putting forward modest reform proposals for a new approach from a criminal justice perspective We argue that, regardless of formal punitive labels, onerous collateral consequences should be (if not abolished) at least integrated as much as possible within the sentencing process, making them transparent and enabling courts to ensure the overall proportionality of the ‘sanctioning package’ arising from a criminal conviction.

Dal Santo, Luiz Phelipe. 2022. “Killing and Letting Die: Depicting the Brazilian Conundrum Between Police Killings and Private Lethal Practices.” Pp. 329-349 in Guns, Gun Violence and Gun Homicides, edited by Wendell C. Wallace. Palgrave Macmillan. [More information here]

Rates of imprisonment have long been used to compare levels of punitiveness among nations. The lower they are, the more tolerant a society is considered to be. Some authors have argued this may be misleading though, since it does not provide us with a full picture of penal practices and their harshness. In this chapter, I explore two aspects of the Brazilian case which can contribute to this debate on punishment and society. In so doing, I highlight two common punitive practices in the Global South, despite them being overlooked in the Northern literature. Drawing on secondary and official data, I first analyze the high levels of homicide in the country and the lack of state intervention—be it punishment or mere investigation. I then turn my attention to the police lethal action, another systemic practice in peripheral countries. While the first scenario indicates the so-called ‘absence of the State’ (and the police) constitutes a condition for the reproduction of tens of thousands of homicides per year, state interventions can also be problematic, resulting in other thousands of deaths. Here lies a duality of the Brazilian state: killing and letting die. In both contexts, guns are the instrument used in the vast majority of the killings. Therefore, guns are used both as means of solving private conflicts and as the state exercise of power, meaning that they play a key role in the Brazilian society, particularly in terms of producing (dis)order and social control.

Kaufman, Sarah Beth, William Christ, and Habiba Noor. 2022. To Be Honest: Voices on Donald Trump's Muslim Ban. Trinity University Press. [More information here]

To Be Honest is a documentary theatre script and series of essays reflecting on the ways Muslims are perceived and spoken of in the contemporary United States. With funding from a Mellon Foundation grant, researchers conducted more than two hundred hours of qualitative interviews in Texas with people across religious and political spectrums, during the lead-in to the 2016 Presidential election. To Be Honest was born from these interviews, illuminating Americans' vastly different experiences with Islam, from evangelicals who work to convert Muslims with the aim of “helping them achieve peace” to Muslim youth who struggle to make sense of why society dissects their religion. Students, scholars, readers, and theatergoers will find a valuable tool for examining their own biases and encouraging dialogue across ideological perspectives.

Schept, Judah. 2022. Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. New York University Press. [More information here]

"As the United States began the project of mass incarceration, rural communities turned to building prisons as a strategy for economic development. More than 350 prisons have been built in the U.S. since 1980, with certain regions of the country accounting for large shares of this dramatic growth. Central Appalachia is one such region; there are eight prisons alone in Eastern Kentucky. If Kentucky were its own country, it would have the seventh highest incarceration rate in the world. In Coal, Cages, Crisis, Judah Schept takes a closer look at this stunning phenomenon, providing insight into prison growth, jail expansion and rising incarceration rates in America’s hinterlands.

Drawing on interviews, site visits, and archival research, Schept traces recent prison growth in the region to the rapid decline of its coal industry. He takes us inside this startling transformation occurring in the coalfields, where prisons are often built on top of old coalmines, including mountaintop removal sites, and built into community planning approaches to crises of unemployment, population loss, and declining revenues. By linking prison growth to other sites in this landscape—coal mines, coal waste, landfills, and incinerators—Schept shows that the prison boom has less to do with crime and punishment and much more with the overall extraction, depletion, and waste disposal processes that characterize dominant development strategies for the region.

Schept argues that the future of this area now hangs in the balance, detailing recent efforts to oppose its carceral growth. Coal, Cages, Crisis offers invaluable insight into the complex dynamics of mass incarceration that continue to shape Appalachia and the broader United States."

BOOK REVIEWS

Dwyer, Patrick. 2022. Book review: Disruptive prisoners: Resistance, reform, and the new deal. By Chris Clarkson and Melissa Munn. Law & Society Review 56(1): 146-147 [Access it here]

 

PUBLIC SCHOLARSHIP

Bardelli, Tommaso, Ruqauyah Zarook, and Derick McCarthy. March 7, 2022. “How Corporations Turned Prison Tablets Into a Predatory Scheme.” Dissent Magazine. [Access it here]

 

“Prison iPads” became a lifeline during the pandemic. They also became a new way to squeeze money out of the incarcerated and their families.