Saturday, September 17, 2022

Members' Publications: September Edition

As compiled by Dr. Kaitlyn Quinn

 LAW AND SOCIETY ASSOCIATION

Collaborative Research Network: Punishment and Society

Organizers:

Ashley Rubin, University of Hawai’i at Mānoa, USA

Natalie Pifer, University of Rhode Island

 

RECENTLY PUBLISHED WORKS

September 2022

ARTICLES

Aaronson, Ely and Gil Rothschild-Elyassi. 2021. “The symbiotic tensions of the regulatory–carceral state: The case of cannabis legalization.” Regulation & Governance 15(S1): S23-S39. [Access it here]

Recent scholarship has emphasized the need to develop a polymorphic conceptualization of the regulatory state. This article contributes to this theory-building project by outlining a research agenda for exploring the symbiotic interactions and tensions between the regulatory and carceral morphs of the state. Using the case study of cannabis legalization reforms in the United States, we argue that the legitimation deficits of the carceral state stimulate the proliferation of new regulatory frameworks for governing social problems that were traditionally handled by the criminal justice system. We demonstrate how the polymorphic approach illuminates the ways in which the regulatory and carceral morphs of the state compete for influence over shared policy domains, but also complement and reinforce one another. Thus, rather than precipitating the demise of the carceral state, cannabis legalization reforms sustain a bifurcated governance structure perpetuating long-standing patterns of using drug law as a means for racialized social control.

Aviram, Hadar. 2022. “The House Always Wins: Doctrine and Animus in California’s COVID-19 Prison Litigation.” Case Western Reserve Law Review 72(3): 565-630. [Access it here]

Bardelli Tommaso, Zach Gillespie, and Thuy Linh Tu. 2022. “Surviving austerity: Commissary stores, inequality and punishment in the contemporary American prison.” Punishment & Society. OnlineFirst. [Access it here]

Privatization and austerity measures have turned US prisons and jails into sites of financial extraction. As corrections systems have slashed budgets for essential services, incarcerated individuals are increasingly expected to cover the costs of their institutionalization, including amounts for administrative fees and legal support, and for covering basic necessities during incarceration. This article focuses on the commissary system as a central yet understudied institution of the American neo-liberal prison. It conceptualizes commissary as a double-edged institution: on the one hand, prison commissary stores—where people can purchase a wide variety of items, from extra food to small appliances—constitute a crucial mechanism for extending financial extraction inside carceral institutions, siphoning millions of dollars each year from impoverished households. At the same time, we argue, shopping at commissary allows incarcerated persons to mitigate against the punitive frugality imposed by the prison and to limit the reach of disciplinary power. Drawing on qualitative research with sixty formerly incarcerated men in New York State, and on the personal experiences of one of the authors with the New York penal system, this article reconstructs how access to economic capital functions as a mediating structure in contemporary US prisons, enabling some prisoners to negotiate carceral punishment, while leaving others fully exposed to its harmful consequences.

Belt, Rabia. 2022. “The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future.” Georgetown Law Journal 110(4): 785-833. [Access it here]

Law has ignored the problems of fatness in prisons and jails and regularly fails to address much-needed accommodations for fat incarcerated people due to flaws in incarceration law and applications of disability law.

The dilemma of fat incarcerated people extends beyond litigation difficulties, however. It is a heuristic that illustrates the depth of the harm of mass incarceration and the need to take disability seriously—and how complicated taking disability seriously is. Attention to the social inequities that produce and maintain the population of fat people in prisons exposes a profound tension in disability scholarship and activism. Typically, disability scholarship and advocacy seek to unite a disability community of people with varying bodily impairments by focusing on stigma and stereotyping. While people’s bodies are different, all disabled people experience ableism. This Article contends that disability scholars and advocates can and should augment their focus on stigma and stereo- typing to emphasize the social inequities such as environmental poisoning, racism, poverty, and violence that produce many debilitating impairments. This proposal is an uncomfortable proposition for disability scholarship and advocacy wary of eugenic treatment and “cures.” Reducing social inequities would reduce the population of disabled people, and advocacy to improve the environmental predecessors to impairment could be viewed as a condemnation of the state of disability itself. 

However, proper attention to intersectional injustice in conjunction with respect for disabled people requires thoughtful consideration of the production of impairments. Although not all disabilities are the result of social injustice, knitting together social inequality and disability would reorient the field on those who are most marginalized, redirect it toward a greater reliance on intersectional principles, and link it to other political and legal campaigns that challenge injustice.

Burkhardt, Brett C. and Scott Akins. 2022. “How Should Police Respond to Homelessness? Results from a Survey Experiment in Portland, Oregon.” Criminal Justice Studies. OnlineFirst. [Access it here]

Recent years have seen increases in citizen complaints and legislation about homelessness. Police are often tasked with responding to these complaints and violations. This paper asks: What do people want the police to do when they encounter visible homelessness, and how are these preferences related to characteristics of observers and of individuals who are homeless? It presents findings from a survey experiment delivered to residents of Portland, Oregon, USA. Respondents were given a series of vignettes involving a hypothetical homeless man whose race (Black or White) and background characteristics (substance abuse, mental illness, combat veteran, or control) were randomly assigned. Respondents were then asked to endorse an aggressive (‘arrest’), therapeutic (‘help’), or hands-off (‘ignore’) response by police. Results reveal support for a therapeutic response to visible homelessness, though this was mediated somewhat by the race of the homeless person. The findings contribute to research on public perceptions of police actions.

Carter, TaLisa J. and Miltonette O. Craig. 2022. “It Could Be Us: Black Faculty as ‘Threats’ on the Path to Tenure.” Race and Justice 12(3): 569-587. [Access it here]

Racial disparities in tenure and promotion outcomes are well known in the existing research literature. Scholarship establishes that Black and Brown faculty experience unique challenges when navigating the tenure and promotion process, such as lack of diverse mentorship, biased student/peer evaluations, and disproportionately high service demands. However, the public has entered this discourse due to recent media attention involving the tenure cases of Nikole Hannah-Jones and Cornel West, and this has prompted minoritized faculty nationwide to reflect on the implications of these incidents on their own careers. This study relies on theoretical and conceptual literature to discuss the professional realities Black faculty face on the job. We make the theoretical claim that the racial threat hypothesis can facilitate understanding of how Black faculty pursuing tenure is a political threat to white hegemony in the academy resulting in an increase of social control. We conclude with concrete recommendations on how Black scholars can wield the label of “threat” to successfully navigate the academy.

Jiang, Jize and Zhifeng Chen. 2022. “Victim Welfare, Social Harmony, and State Interests: Implementing Restorative Justice in Chinese Environmental Criminal Justice.” Asian Journal of Criminology. OnlineFirst. [Access it here]

While there have been abundant studies on restorative justice (RJ) in China and across the globe, research has paid scant attention to the increasing incorporation of RJ into the framework of Chinese environmental criminal justice (ECJ) and its mounting prominence in handling ECJ cases. To broaden our understanding of RJ in China, this study empirically examines the forms, functions, and foundations of RJ ideals and practices manifested in contemporary Chinese legal responses to environmental crime. Drawing on various sources of qualitative data, we find that RJ in ECJ uses a state-led-and-coordinated network of community organizations and residents (including groups of environmental victims) to account for victim welfare, offenders’ new responsibilization, and public engagement. Furthermore, we argue, as a peculiar form of law’s responsiveness in the wake of China’s swift transition to modernity, RJ in Chinese ECJ works to reinforce the declining legitimacy of the authoritarian state and enhance decreasing trust in the state’s ability to govern. Implications for better understanding and implementing RJ within the ECJ field are also presented and discussed.

Miltonette O. Craig and Kwan-Lamar Blount-Hill. 2022. “Understanding Police Agencies’ Explanations for Racial and Ethnic Disproportionality in Vehicle Stops.” Crime & Delinquency. OnlineFirst. [Access it here]

Extant literature on traffic stops indicates that disparate enforcement of traffic laws is pervasive, violative of individuals’ constitutional liberties, and can have a lasting impact on the psyches of those subjected to it. This issue takes center stage in Missouri, a state that has often been alleged to engage in racial profiling, because disproportionality has persisted despite legislation to address it. To this point, several quantitative investigations of Missouri traffic stop data have answered many important questions regarding the existence and prevalence of disparities. However, there is a dearth of qualitative research that focuses on police agencies’ reactions to the data outcomes. The current study addresses this gap by analyzing written responses from Missouri agencies submitted with stop statistics. Findings reveal that agencies use responses to provide several types of justifications, excuses, and mitigating circumstances to explain existing disparities.

Miltonette O. Craig, Jonathan C. Reid and Kelsey L. Kramer. 2022. “Vehicle Stops and Group Position: How Missouri Agencies Use Place and Race to Explain Disparities.” Journal of Contemporary Criminal Justice. OnlineFirst. [Access it here]

Missouri has been a part of the national discussion on racial profiling for several years—most recently with the NAACP’s issuance of a statewide travel advisory warning Black motorists of high disproportionality in vehicle stops. In their annual reports of stop data, agencies can submit a response to explain their numerical data. This study inductively analyzes the content of these written responses (N = 806), which were submitted between 2001 and 2019. Findings indicate that agency responses contain rationales in accordance with a sense of group position, with explanations for stops, searches, and arrests of motorists of color framed in terms of outsiders as a problematic influx upon insider spaces. The responses also show that the explanations are more about policing place than a legitimate effort at maintaining safety of the jurisdiction. The results of this study have several important implications for research, theory, and policy.

Crewe, Ben, Corentin Duran, Manon Veaudor, and Valérie Icard. 2022. “‘Penal Power, Then, Exercises a Grip That Has Become Tighter and More Demanding, Even If in Many Respects Its Form Has Softened’: Interview With Ben Crewe.” Champ Pénal/Penal Field 25. [Access it here]

 

Hamilton, Claire and Lynsey Black. 2021. “‘Strikingly and Stubbornly High’: Investigating the Paradox of Public Confidence in the Irish Police.” European Journal of Criminology. OnlineFirst. [Access it here]

While levels of public confidence in the police have declined internationally, the Republic of Ireland appears to have bucked this trend with confidence levels that remain ‘strikingly and stubbornly high’ ( Mulcahy, 2016: 275). This situation appears all the more puzzling given the wave of scandals to have hit the force in recent decades, ranging from police corruption in Donegal in the late 1990s to a more recent whistleblower scandal that has resulted in the resignation of a slew of Ministers and high-ranking officials. Such developments beg important questions as to the factors sustaining public confidence over this tumultuous period. Drawing on international and domestic data, this article aims to probe this ‘paradox’ of public confidence in the Irish police. It argues that, although confidence is high, there is more to the dynamics of confidence in the police in Ireland than this initial appraisal suggests. Indeed, it advances the Irish case as an illustration both of the dimensionality of the public confidence concept and the complexity of the pathways to trust in the police.

Jefferis, Danielle C. forthcoming 2022. “Carceral Intent.” Michigan Journal of Race & Law 27. [Access it here]

For decades, scholars across disciplines have examined the stark injustice of American carceralism. Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate. These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement. This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement.

This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history. The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent. Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence. Critical race theorists have long critiqued the intent-focused anti-discrimination doctrine as incapable of remedying structural racism and inequities. The same can be said of the doctrine of incarceration. The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features. A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection.

Jouet, Mugambi. 2021. “Revolutionary Criminal Punishments: Treason, Mercy, and the American Revolution.” American Journal of Legal History 61(2): 139-176. [Access it here]

*Mugambi Jouet won the Brophy Prize for this article. The Alfred L. Brophy Prize is awarded annually to the article or other contribution in theAmerican Journal of Legal History that most significantly breaks new ground and adds new insights to the study and understanding of United States legal history.

This article focuses on the exceptional mildness of criminal punishments for alleged traitors in the wake of the American Revolution. American leaders were disinclined to inflict the death penalty on loyalists who supported British rule in the revolutionary war or on insurgents in the Shays, Whiskey, and Fries rebellions shortly after independence. In fact, the Founding Fathers and other first-generation officials commonly showed remarkable mercy. Numerous “traitors” readily rehabilitated themselves by recognizing their faults, swearing an oath of allegiance to the new American republic, and promising to refrain from further wrongdoing. These revolutionary punishments were a striking prefiguration of modern penal practices: guilty pleas, probation sentences, and rehabilitation policies aiming to reintegrate wrongdoers into society. While American revolutionary punishments comprised stark racial inequities and did not constitute a lost utopia, they were particularly mild for the period. In contrast, the contemporary French Revolution led to wide-scale executions of purported traitors. Besides shedding light on historic events that criminal justice scholars have neglected, the article’s findings are relevant to ongoing debates about American exceptionalism and the peculiar harshness of modern American justice, including originalist and non-originalist interpretations of the Eighth Amendment. The rise of mass incarceration in the United States and its retention of the death penalty can foster cultural essentialism about how American culture traditionally lacks humanistic sensibilities. In reality, the revolutionary criminal punishments of the late eighteenth century demonstrate how America was once a trailblazer in embracing humane conceptions of justice.

Kurwa, Rahim and Susila Gurusami (equal first authors). 2022. “Carceral Migrations: Reframing Race, Space, and Punishment.” Social Service Review 96(2):353-388. [Access it here]

We theorize state governance through population spatial trajectories to capture how seemingly disparate systems of punishment employ the same set of punishment logics and technologies to spatially regulate populations of color, which produces and reifies racial projects. Advancing a theoretical framework called carceral migrations, we argue that governments use legal punishment to force, re- strict, and prevent movement as a racializing project of settler empire and anti- Blackness. Carceral migrations extend understandings of mass incarceration beyond confinement and holding by articulating three major points. First, the state’s regu- lation of populations’ spatial trajectories is punishment by design. Second, these spatially-oriented punishments operate as race-making and reinforcing technologies by producing punitive and recognizable spatial trajectories (or nontrajectories) for groups of people of color. Third, despite appearing race neutral in language, the development and application of legal codes and policies have disparate impacts on the spatial trajectories of people of color.

Leon, Chrysanthi S. and Ashley J. Kilmer. 2022. “‘Secondary registrants’: A new conceptualization of the spread of community control.” Punishment & Society. OnlineFirst. [Access it here]

U.S. policies influence worldwide responses to sexual offending and community control. Individuals in the U.S. convicted of sex offenses experience surveillance and control beyond their sentences, including public registries and residency restrictions. While the targets are the convicted individuals, many registrants have romantic partners, children, and other family members also navigating these restrictions. Findings from a qualitative study using written and interview responses from a hard-to-reach group—family members of registrants (n  =  58)—reveal legal and extra-legal surveillance and control beyond the intended target. We argue that family members are “secondary registrants” enduring both the reach of sex offense policies into their personal lives and targeted harms because of their relationship with a convicted individual, including vigilantism and a “sex offender surcharge.” Family members engage in advocacy work to ameliorate sex offense restrictions to counteract their own stigmatization and social exclusion. Conceptually, secondary registration captures the unique and expansive reach of policy, state surveillance, and coercion on registrant family members and raises new concerns about spillover harm. Secondary registration demonstrates an understudied example of the neoliberal penal practice of de-centering the state but with the addition of deep stigmatization and the spread of sovereign and vigilante violence onto families.

Malone Gonzalez, Shannon and Faith M. Deckard. 2022. ’We Got Witnesses’: Black Women Navigating Police Violence and Legal Estrangement.” Social Problems. OnlineFirst. [Access it here]

Police violence shapes the lives of racial and ethnic minorities, and while much has been written about strategic responses to police, missing is an examination of how black women navigate interactions with officers. Based on 32 interviews with black women, we find that they use witnessing, or the mobilization of others as observers to police encounters. Research demonstrates the rising role of videos and smartphones in documenting encounters with officers. We find that black women adapt witnessing techniques based on their surroundings, available resources, and network contacts. Three forms of witnessing are observed: physical witnessing, mobilizing others in close proximity to interactions with officers; virtual witnessing, using cellphone or social media technology to contact others or record interactions with officers; and institutional witnessing, leveraging police or other institutional contacts as interveners to interactions with officers. Black women mobilize witnessing to deescalate violence, gather evidence, and promote accountability. Attuned to both the interactional and structural dynamics of police encounters, black women conceptualize witnessing as a way to survive police encounters and navigate their legal estrangement within the carceral system. We theorize black women’s witnessing as a form of resistance as they work to reconfigure short- and long-term power relations between themselves, their communities, and police.

Mamet, Elliot. 2022. “‘This Unfortunate Development’: Incarceration and Democracy in W.E.B. Du Bois.” Political Theory. [Access it here]

Incarceration served as a primary apparatus by which abolition democracy was defeated after Reconstruction. Carceral institutions—such as the penitentiary, the convict-lease system, and the chain gang—functioned to demarcate the racial limits of citizenship and to impede equal political power. This article turns to W. E. B. Du Bois to argue that incarceration constrains democratic political equality. Turning to Du Bois’s treatment of crime and imprisonment in works including The Philadelphia Negro (1899), “The Spawn of Slavery” (1901), and The Souls of Black Folk (1903), alongside archival material, I situate incarceration in Du Bois’s democratic thought. According to Du Bois, carceral institutions bounded ideas of full citizenship, fueled panic over Black “criminality,” fomented feelings of inferiority, and hampered the possibility for abolition democracy, a multiracial, multiclass movement committed to worker democracy and a future rid of slavery and subjugation. Du Bois shows us how carceral institutions run into tension with democratic ideals.

Peirce, Jennifer. 2022. “‘It was supposed to be fair here’: Human rights and recourse mechanisms in the Dominican Republic’s prison reform process.” Journal of Human Rights 21(1): 91-109. [Access it here]

This article analyzes prisoners’ accounts of human rights violations and protections in two types of prisons in the Dominican Republic: “new” prisons that uphold goals of rights and rehabilitation and “old” prisons that mostly warehouse people. This mixed-methods study finds that prisoners experience significant violence, mostly by other prisoners in old facilities and mostly by corrections staff in new facilities, with different rationales and possible responses. I consider three types of recourse mechanisms: top-down (courts or external commissions), bottom-up (advocacy), and internal institutional (grievance processes and human rights training). I argue that each of these carries constraints, and prisoners perceive official channels to favor the institution. The prevalence of rights violations and the narrow recourse options generate cynicism and frustration among prisoners and their families, which can undermine the legitimacy gained through other important improvements in the reform process.

Rothschild-Elyassi, Gil. 2022. “The Datafication of Law: How Technology Encodes Carceral Power and Affects Judicial Practice in the United States.” Law & Social Inquiry 47(1): 55-94. [Access it here]

This inquiry explores how data analyses about US Federal sentences have transformed sentencing practice beginning in the mid-1980s. I consider this inquiry an early case of the datafication of law, a pervasive process that translates legal practice into data and embeds it in digital networks so it can be tracked and analyzed in real time. To explore datafication historically and in relation to legal practice and power, I consider it not as an objective and passive undertaking but, rather, as an ideological and performative process that encodes and enacts normative presumptions and desirable futures. The empirical inquiry traverses “levels of analysis” and thus bridges prominent perspectives in sociolegal research. In so doing, I identify four mechanisms that mediate “large-scale” processes and “local” practices: field assembly, symbolic projection, material inscription, and boundaries spanning. Substantively, I show how datafication has not simply described, but also transformed, sentencing practice according to a colorblind-carceral imaginary that strives to fix the present in place. By relentlessly translating decisions into data forms that derive from this carceral imaginary, datafication affects judicial action and partakes in sustaining legacies of oppression. Yet, like other technologies, datafication also reveals dialectic dimensions in opening up to new actors and subjecting its ideological underpinnings to contestation and change.

Rowen, Jamie, Scott Blinder, and Rebecca Hamlin. 2022. “Victim, perpetrator, neither: Attitudes on deservingness and culpability in immigration law.” Law & Society Review 56(3): 369-397. [Access it here]


This study examines whether there is popular support for a restrictive immigration policy aimed at denying safe haven to human rights abusers and those affiliated with terrorism. We designed a public opinion survey experiment that asks respondents to evaluate whether low level or high level Taliban members who otherwise qualify for refugee status deserve immigration benefits. We found that a majority of respondents did not immediately deny a visa to low level worker. Looking at respondents’ explanations for their decision, we find two distinct clusters of reasons that we classify as either circumstantial – focused on the particularities of the case – or categorical – focused on general attributes of the applicant. Many respondents using circumstantial reasoning saw a distinction between the jobs potential immigrants have done in their pasts and what they actually believe, underscoring the fraught dynamics of armed conflict in which people may be swept up in violence they do not support.

 

Sandoval, Juan R. and Sarah E. Lageson. 2022. “Patchwork disclosure: Divergent public access and personal privacy across criminal record disclosure policy in the United States.” Law & Policy 44(3): 255-277. [Access it here]

Scholars have paid minimal attention to state statutory guidance that allows criminal justice agencies to disclose records that contain personal information about arrestees, defendants, and incarcerated people. We analyze US state policy for police, courts, prisons, and record repositories (N = 200). Most states restrict access to compiled criminal histories, but nearly all allow broad public access to agency records. Divergent policy guidance accounts for these differences, where transparency laws govern agency records while state criminal codes regulate records of arrest and prosecution, otherwise known as RAP sheets. These policy differences contribute to widespread disclosures of non-conviction records, raising questions about due process and inequality in the big data age.

Simes, Jessica T., Bruce Western, and Angela Lee. 2022. “Mental Health Disparities in Solitary Confinement.” Criminology 60(3): 538-575. [Access it here]

Harsh prison conditions have been widely examined for their effects on the mental health of incarcerated people, but few studies have examined whether mental health status exposes individuals to harsh treatment in the penal system. With prisoners confined to their cells for up to 23 hours each day, often being denied visitors or phone calls, solitary confinement is an important case for studying harsh treatment in prisons. Routinely used as punishment for prison infractions, solitary confinement may be subject to the same forces that criminalize the mentally ill in community settings. Analyzing a large administrative data set showing admissions to solitary confinement in state prison, we find high rates of punitive isolation among those with serious mental illness. Disparities by mental health status result from the cumulative effects of prison misconduct charges and disciplinary hearings. We estimate that those with serious mental illness spend three times longer in solitary confinement than similar incarcerated people with no mental health problems. The evidence suggests the stigma of dangerousness follows people into prison, and the criminalization of mental illness accompanies greater severity of incarceration.

Velazquez, Marisela, Theresa L. Petray, and Debra Miles. 2022. “The Impacts of Drug and Alcohol use on Sentencing for First Nations and Non-Indigenous Defendants.” Race and Justice. OnlineFirst. [Access it here]

This paper examines the ways personal use of illicit substances and alcohol are constructed as either mitigating or aggravating factors to explain offending. We consider the differential constructions of these factors for people who appear in supreme and district courts in northern Queensland, Australia, for offences involving illicit substance use, alcohol use, drug-related offences, and violence. Qualitative analysis of courtroom observations is understood through the lens of Critical Race Theory (CRT). Our findings reveal that personal use of illicit substances was primarily constructed by legal practitioners as an indicator of disadvantaged circumstances when discussing non-Indigenous defendants. In these cases, drug use was connected to other disadvantages such as poor mental health, physical pain, and trauma. In contrast, alcohol use was primarily raised as an aggravating factor for First Nations defendants, constructed by legal practitioners as a personal flaw linked to violent offending, and overshadowed the interrelated disadvantages that many First Nations defendants experience. This reflects social attitudes about First Nations people, reinforces individualistic explanations for offending patterns, and points to the institutional racism embedded in the structural processes of Queensland's higher courts that continues to profoundly impact First Nations people.

Webster, Elizabeth, Kathleen Powell, Sarah E. Lageson, and Valerio Baćak. 2022. “‘Satan’s Minions’ and ‘True Believers’: How Criminal Defense Attorneys Employ Quasi-Religious Rhetoric and What It Suggests about Lawyering Culture.” Justice System Journal 43(1): 53-67. [Access it here]

The notion of law as sacred, and lawyers as righteous saviors, may seem anachronistic in the current context of heavy caseloads and expedited processing in the criminal justice system. Nevertheless, language reflecting these ideals still permeates defense attorneys’ descriptions of their roles, their legal practice, and their relationships to their colleagues and adversaries. We examine this language – specifically, attorneys’ quasi-religious rhetoric – to better understand courtroom dynamics: how attorneys see themselves, their work, their colleagues, and their legal adversaries. In this analysis of semi-structured interviews with 30 defense attorneys, we find that attorneys use of quasi-religious rhetoric manifests as a cultural practice that helps to establish and maintain professional identities, boundaries, and relationships. Our findings also suggest that young and novice public defenders are likely to express especially zealous views, which may compromise their efforts to collaborate within the adversarial system, as well as contribute to burnout.

Werth, Robert. 2022. “More than monsters: Penal imaginaries and the specter of the dangerous sex offender.” Punishment & Society. OnlineFirst. [Access it here]

Drawing from ethnographic data, this article examines parole personnel’s imaginaries of dangerous sex offenders: individuals perceived as especially aberrant, predatory and irredeemable. While the dangerous sex offender is perceived as a monster, this article contends that we also need to attend to the spectral characteristics ascribed to this subject. For parole personnel, the dangerous sex offender is a monster, but this is a monster that haunts; a monster that represents a spectral figure. The spectrality of this figure manifests in two overlapping ways. First, parole personnel perceive the dangerous sex offender – as a person – as a ghostly figure: a mobile, roving, nearly omnipresent individual that is difficult to locate or contain. Second, they perceive the threat posed by this subject – the commission of future sex crimes – as a pervasive absent presence. Even when it is not occurring, recidivism is imagined as an emergent, already unfolding event. In this way, dangerous sex offenders and their presumptive reoffending represent haunting figures that trouble the distinctions between absence/presence, visible/invisible and knowable/unknowable. Through tracing the convergence of monstrosity and spectrality, this article shows how parole personnel’s imaginaries undergird the extremely exclusionary ways that they govern dangerous sex offenders.

Wozniak, Kevin H., Justin T. Pickett, and Elizabeth K. Brown. 2022. “Judging hardworking robbers and lazy thieves: An experimental test of act- vs. person-centered punitiveness and perceived redeemability.” Justice Quarterly. OnlineFirst. [Access it here]

This study explores whether Americans’ punitiveness and perceptions of redeemability are shaped more by the type of crime committed or by judgements about an offender’s moral character. Guided by theories of neoliberalism, we focus on laziness as an indicator of flawed character that is independent of criminality. A sentencing vignette experiment administered to a national sample of the U.S. population tested the effects of crime type and a defendant’s employment status, work ethic, and race on respondents’ preferred punishment and perceptions of the defendant’s redeemability. Both crime type and work ethic significantly affect perceived (ir)redeemability and sentencing preferences, but the effects are not identical. Work ethic exerts the largest effect on perceived (ir)redeemability, whereas crime type most strongly influences sentencing preferences. We discuss the implications of our findings for act- vs. person-centered theories of punishment, as well as the role of laziness stigma in social responses to lawbreakers.

 

BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS

Black, Lynsey. 2022. Gender and Punishment in Ireland: Women, Murder and the Death Penalty, 1922-64. Manchester University Press. [More information here]

Gender and punishment in Ireland explores women's lethal violence in Ireland. Drawing on comprehensive archival research, including government documents, press reporting, the remnants of public opinion and the voices of the women themselves, the book contributes to the burgeoning literature on gender and punishment and women who kill. Engaging with concepts such as 'double deviance', chivalry, paternalism and 'coercive confinement', the work explores the penal landscape for offending women in postcolonial Ireland, examining in particular the role of the Catholic Church in responses to female deviance. The book is an extensive interdisciplinary treatment of women who kill in Ireland and will be useful to scholars of gender, criminology and history.

Black, Lynsey, Louise Brangan, and Deirdre Healy (Eds.). 2022. Histories of Punishment and Social Control in Ireland: Perspectives from a Periphery. Emerald Publishing. (Perspectives on Crime, Law and Justice in the Global South series) [More information here]

As a peripheral state within English-speaking criminology, Ireland is often overlooked in mainstream Anglophone theories of punitiveness and penal transformation. This edited collection addresses this deficit by bringing together leading scholars on Irish penal history and theory to make a case for Ireland’s wider theoretical relevance.

Together, these chapters show in rich detail the trends and debates that have surround patterns of punishment in Ireland since the formation of the State in 1922. However, by being about twentieth century Irish penal history, the volume inherently foregrounds often absent perspectives in criminology and punishment, such as gender, postcoloniality, religion, rurality, and carcerality beyond the criminal justice system. This is more than a collection of Irish criminology, therefore; the social analysis of Irish penal history is undertaken as a contribution towards southernising criminology. The authors each seek to engage criminology in a wider epistemological re-imagining of what is meant by punitiveness, penal culture, and 'Anglophone' penal history.

Opening up new avenues of exploration and collaboration, and showing how researchers might look beyond the usual problems, refine the mainstream trends, and rework the obvious questions, this collection demonstrates how the Irish perspective remains relevant for international researchers interested in punishment and history.

Johns, Diana, Catherine Flynn, Maggie Hall, Claire Spivakovsky, and Shelley Turner. 2022. Co-production and Criminal Justice. Routledge. [More information here]

This book explores practical examples of co-production in criminal justice research and practice. Through a series of seven case studies, the authors examine what people do when they co-produce knowledge in criminal justice contexts: in prisons and youth detention centres; with criminalised women; from practitioners’ perspectives; and with First Nations communities.

Co-production holds a promise: that people whose lives are entangled in the criminal justice system can be valued as participants and partners, helping to shape how the system works. But how realistic is it to imagine criminal justice "service users" participating, partnering, and sharing genuine decision-making power with those explicitly holding power over them?

Taking a sophisticated yet accessible theoretical approach, the authors consider issues of power, hierarchy, and different ways of knowing to understand the perils and possibilities of co-production under the shadow of "justice". In exploring these complexities, this book brings cautious optimism to co-production partners and project leaders.

Kleinstuber, Ross, Jeremiah Coldsmith, Margaret E. Leigey, and Sandra Joy. 2022. Life Without Parole: Worse Than Death? Routledge. [More information here]

This book is an in-depth critical examination of all pertinent aspects of life without parole (LWOP). Empirically assessing key arguments that advance LWOP, including as an alternative to the death penalty, it reveals that not only is the punishment cruel while not providing any societal benefits, it is actually detrimental to society.

Over the last 30 years, LWOP has exploded in the United States. While the use of capital punishment over that same time period has declined, it must be recognized that LWOP is, in fact, a hidden death sentence. It is, however, implemented in a way that allows society to largely ignore this truth. While capital punishment has rightfully been subject to intense debate and scholarship, LWOP has mostly escaped such scrutiny. In fact, LWOP has been touted by both death penalty abolitionists and tough-on-crime conservatives, which has allowed it to flourish under the radar. Specifically, abolitionists have advanced LWOP as a palatable alternative to capital punishment, which they perceive as inhumane, error-prone, costly, and racially biased. Conservatives, meanwhile, advocate for LWOP as an effective means of fighting crime, a just form of retribution, and necessary tool for managing incorrigible offenders. This book seeks to tap into and help inform this growing debate by subjecting these key arguments to empirical scrutiny. The results of those analyses fail to produce any evidence in support of any of those various justifications and therefore suggest that LWOP should be abolished and replaced with life sentences that come with parole eligibility after a maximum of 25 years.

The book will be of great interest to students and scholars of criminology and criminal justice and will also have crossover appeal into the fields of law, political science, and sociology. It will also appeal to criminal justice professionals, lawmakers, activists, and attorneys, as well as death penalty abolitionists, opponents of mass incarceration, advocates for sentencing reform, and supporters of prisoners’ rights.

Miller, Esmorie. 2022. Race, Recognition and Retribution in Contemporary Youth Justice: The Intractability Malleability Thesis. Routledge. [More information here]

Race, Recognition and Retribution in Contemporary Youth Justice provides a cross-national, sociohistorical investigation of the legacy of racial discrimination, which informs contemporary youth justice practice in Canada and England. The book links racial disparities in youth justice, especially exclusion from ideologies of care and notions of future citizenship, with historical practices of exclusion.

SozzoMáximo (Ed.). 2022. Prisons, Inmates and Governance in Latin America. Palgrave Macmillan. [More information here]

This edited collection addresses the topic of prison governance which is crucial to our understanding of contemporary prisons in Latin America. It presents social research from Nicaragua, the Dominican Republic, Venezuela, Colombia, Ecuador, Brazil, Peru, Uruguay and Argentina to examine the practices of governance by the prisoners themselves in each unique setting in detail. High levels of variation in the governance practices are found to exist, not only between countries but also within the same country, between prisons and within the same prison, and between different areas. The chapters make important contributions to the theoretical concepts and arguments that can be used to interpret the emergence, dynamics and effects of these practices in the institutions of confinement of the region. The book also addresses the complex task of explaining why these types of practices of governance happen in Latin American prisons as some of them appear to be a legacy of a remote past but others have arisen more recently. It makes a vital contribution to the fundamental debate for prison policies in Latin America about the alternatives that can be promoted.

 

PUBLIC SCHOLARSHIP

Lageson, Sarah. July 18, 2022. “‘Clean Slate’ Justice Laws Offer a Second Chance—Only to Some.” WIRED. [Access it here]

States are trying to automate criminal record clearance. But what if they end up amplifying racial disparities?

Wednesday, April 13, 2022

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 JusticeVol. 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.