Members' Publications: February 2020 Edition

As compiled by Kaitlyn Quinn

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

February 2020

ARTICLES

Black, Lynsey, Seal, Lizzie and Seemungal, Florence. 2019 (advance online). “Public opinion on crime, punishment and the death penalty in Barbados.” Punishment & Society [Access it here]

The bulk of extant research on public opinion on crime and punishment is focused on Global North nations. This article contributes a new perspective to the literature on punitivism by examining public opinion on crime, punishment and the death penalty in Barbados. The article presents insights from exploratory focus group research conducted in Barbados in 2017. These findings are particularly relevant as Barbadian lawmakers navigate reform of the nation’s death penalty law. While the focus groups reveal anxieties that echo those identified in other jurisdictions, related to nostalgia for the past and concern regarding social order for instance, they also demonstrate the specific relevance of time and place. Using approaches from Caribbean Criminology and drawing on post-colonial perspectives, the article examines the context of views on punishment in Barbados, including perceptions of ‘neo-colonial’ interference and concerns about what can be lost in the process of ‘progress’.

Campbell, Michael, Schoenfeld, Heather and Vaughn, Paige. 2019 (online first). “Same old song and dance? An analysis of legislative activity in a period of penal reform.” Punishment & Society. [Access it here]

After years of tough-on-crime politics and increasingly punitive sentencing in the United States, economic, political, and social shifts in the 21st century have created new opportunities for opponents of the penal status quo. By 2013, a majority of states had enacted some type of reform aimed at reducing prison populations. An emerging body of punishment and society scholarship seeks to understand the possibilities and characteristics of reform efforts by examining enacted state legislation. In this article, we use a unique data set of all proposed and passed bills in three legislative sessions in New Jersey between 2001 and 2013 to provide a nuanced empirical account of change and continuity in penal logics in the period of reform. Even when not enacted, proposed legislation shapes the penal field by introducing new ideas that are later incorporated into rhetoric, policy, or practice. Proposed bills that never become law can also alter the political calculus for reformers or their opponents. Our findings demonstrate that by expanding our universe of data, we gain insight into characteristics of “late mass incarceration” that we might otherwise miss. In particular, while we find evidence of decarceration and bifurcation logics, our analysis also demonstrates that state lawmakers continue to participate in “crime control theater” and reproduce the same punitive penal logics that helped build the carceral state.

Garland, David. 2019. “Reading Foucault: An Ongoing Engagement.” Journal of Law and Society 46(4): 640-661. [Access it here]

This article is a contribution to the occasional series dealing with a major book that has influenced the author. 

Garland, David. 2019 (advance online). “Penal Controls and Social Controls: Toward a Theory of American Penal Exceptionalism.” Punishment & Society [Access it here]

This article argues that to explain American penal exceptionalism, we have to consider America’s exceptional levels of punishment together with America’s exceptional levels of violence and disorder, while understanding both of these as outcomes of America’s distinctive political economy. After specifying the multiple respects in which American penality is a comparative outlier, the article develops a new theorization of modes of penal action that reveals the extent to which the US has come to rely on penal controls rather than other kinds of punishment. This over-reliance on penal controls is viewed as an adaptation to the weakness of non-penal social controls in American communities. These social control deficits are, in turn, attributed to America’s ultra-liberal political economy, which is seen as having detrimental effects for the functioning of families and communities, tending to reduce the effectiveness of informal social controls and to generate high levels of neighborhood disorganization and violence. The same political economy limits the capacity of government to respond to these structurally-generated problems using the social policy interventions characteristic of more fully-developed welfare states. The result is a marked bias towards the use of penal controls.

Iftene, Adelina, Downie, Jocelyn, and Steeves, Megan. 2019. “Assisted Dying for Prison Populations: Lessons from and for Abroad.” Medical Law International 19(2-3): 207-225. [Access it here]

Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in Canada came into effect in June 2016. Because of section 86(1) of the Corrections and Conditional Release Act, as soon as MAiD became available in the community, it also needed to be made available to federal prisoners. There are some good reasons to be concerned about MAiD in the Canadian corrections system based on logistical, legal, and moral considerations. Fortunately, Canada is not the first country to decriminalize assisted dying and so Canadian policies and practices can be compared to others and take some lessons from their experiences. Thus, by reviewing the legal status of assisted dying in prisons internationally, the regulation of assisted dying, demand for assisted dying from prisoners, and the process for prisoners accessing assisted dying, this article offers a comparative overview of assisted dying for prisoners around the world in an effort to inform Canadian and other jurisdictions’ law, policy, and practice.

Kaufman, Sarah Beth. 2019. Book Review: “Judge and Punish: The Penal State on Trial.” Contemporary Sociology48(6): 651-652. [Access it here]

Kaufman, Sarah Beth. 2019. “The Criminalization of Muslims in the United States, 2016.” Qualitative Sociology 42: 521–542. [Access it here]

The criminalization of Muslims—framing an Islamic religious identity as a problem to be solved using state crime control logic—is undeniably in process in the United States. Local, state, and federal statutes target Muslims for surveillance and exclusion, and media sources depict Muslims as synonymous with terrorism, as others have shown. This paper analyzes the public’s role in the criminalization of Islam, which I call “cr-Islamization.” Drawing on in-depth, qualitative interviews in a major South-west city during the lead-up to the 2016 presidential election, I detail how the majority of 144 politically, racially, and economically diverse interviewees talk about Muslims as a potential “racial threat,” using “fear of crime” language indicative of the mass incarceration era. This suggests that criminalization theory should be central to sociological studies of Muslims in the contemporary United States, and that criminalization rhetoric remains powerful, despite mainstream enthusiasm for criminal justice reform. I argue that criminalization’s power might reside in its ability to mutate in the “post-racial” era. The mechanisms supporting crimmigration, the criminalization of black Americans, and cr-Islamization are related but not identical. Muslims are religiously and racially subjugated, but more economically secure compared to other criminalized groups. This paper’s findings should prompt scholars to re-examine the relationships between racialization, criminalization, religious subjugation, and economic exploitation in the twenty-first century United States.

Kaufman, Sarah Beth and Niner, Hanna. 2019. “Muslim Victimization in the Contemporary US: Clarifying the Racialization Thesis.” Critical Criminology 27: 485–502. [Access it here]

This article draws on in-depth, qualitative interviews with Muslim and non-Muslim Americans in 2016 to specify how Muslim "racialization" is shaped by the racial politics of the United States (US). Anti-Muslim bias is not experienced by religious Muslims as a whole, but by people whose bodies are read to be affiliated with the Islamic religion-often erroneously because of their perceived racial characteristics. Self-identified black, white, and Hispanic Muslims with no visible markers of their religion do not experience anti-Muslim harassment, while non-Muslim Christians, Hindus, and Sikhs who embody an imagined "Muslim look," cope with fear and aggression from strangers on a daily basis. These findings are notable for two reasons. First, our respondents demonstrate how racialized religion is mutable: they are active in constructing how Islam is read on their bodies in public. Second, our findings demonstrate how hate crime categorization in the US obscures the role that racism plays in religious victimization. We urge scholars who study anti-Muslim acts to include non-Muslims in their analyses, and advocate for the re-conceptualization of identity based hate crime categories. Excavating the corporeality of criminal victimization in particular can help to understand the ways in which biases are experienced in the contemporary US. 

McNeill, Fergus. 2020. “Penal and Welfare Conditionality: Discipline or degradation.” Social and Policy Administration 54(2): 295-310. [Access it here]

This paper aims to complement analyses of welfare conditionality by examining what can be learned from studies of

conditional punishment in the criminal justice system. Drawing on a range of recent studies, I explore lived experiences of the conditionality attendant on penal forms of supervision; penal forms that have expanded rapidly in recent decades. I argue that, to paraphrase Stan Cohen, such supervision is as much about the dispersal of degradation as it is about the dispersal of discipline. Indeed, in contemporary western societies, both in punishment and in welfare systems, I suggest that conditionality functions less to discipline poor and marginalised people and more to disqualify them from the entitlements of ordinary citizenship. In so doing, conditionality constructs them as denizens, thus serving to limit the liabilities for the state that arise from social inequalities. Extending Delroy Fletcher and Sharon Wright's metaphor, the abusive slaps now meted out in concert by both hands of the penal state are as much about degrading and denying the entitlements of “needy” denizens as they are about influencing their conduct. But crucially, even within the increasingly restrictive context created by these developments,

penal practitioners can and do provide care and assistance.

Phelps, Michelle. 2020. “Mass Probation from Micro to Macro: Tracing the Expansion and Consequences of Community Supervision.” Annual Review of Criminology 3: 261-279. [Access it here]

Between 1980 and 2007, probation rates in the United States skyrocketed alongside imprisonment rates; since 2007, both forms of criminal justice control have declined in use. Although a large literature in criminology and related fields has explored the causes and consequences of mass incarceration, very little research has explored the parallel rise of mass probation. This review takes stock of our knowledge of probation in the United States. In the first section, I trace the expansion of probation historically, across states, and for specific demographic groups. I then summarize the characteristics of adults on probation today and what we know about probation revocation. Lastly, I review the nascent literature on the causal effects of probation for individuals, families, neighborhoods, and society. I end by discussing a plan for research and the growing movement to blunt the harms of mass supervision.

BOOKS/BOOK CHAPTERS/EDITED COLLECTIONS 

Aviram, Hadar. 2020. Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole. University of California Press. [More information here]

In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.

Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.

Fleury-Steiner, B., & Nielsen, L. B. (eds) 2019. The new civil rights research: A constitutive approach. Routledge (originally published 2006). [More information here]

First published in 2006, this book brings together some of the most innovative and important research on civil rights law and legality, this book draws on narratives of individuals from a variety of contexts to provide a rich and contextualized understanding of what happens when law interacts with other competing systems or forms of social organization. By privileging the real world experiences of those most influenced by rights, the collection moves beyond the traditional polarizing debates and presents a constitutive approach to rights that is not reducible to a simple 'for or against' rights formula. While this complex consciousness approach often contributes to the reproduction of dominant-subordinate social relations, it also allows for spaces of resisting existing hierarchical structures embedded in various law-related sites.

Iftene, Adelina. 2019. Punished for Aging: Vulnerability, Rights and Access to Justice in Canadian Penitentiaries.University of Toronto Press. [More information here]

Built around the experiences of older prisoners, Punished for Aging looks at the challenges individuals face in Canadian penitentiaries and their struggles for justice. Through firsthand accounts and quantitative data drawn from extensive interviews, this book brings forward the experiences of federally incarcerated people living their "golden years" behind bars. These experiences show the limited ability of the system to respond to heightened needs, while also raising questions about how international and national laws and policies are applied, and why they fail to ensure the safety and well-being of incarcerated individuals. In so doing, Adelina Iftene explores the shortcomings of institutional processes, prison-monitoring mechanisms, and legal remedies available in courts and tribunals, which leave prisoners vulnerable to rights abuses.

Some of the problems addressed in this book are not new; however, the demographic shift and the increase in people dying in prisons after long, inadequately addressed illnesses, with few release options, adds a renewed sense of urgency to reform. Working from the interview data, contextualized by participants’ lived experiences, and building on previous work, Iftene seeks solutions for such reform, which would constitute a significant step forward not only in protecting older prisoners, but in consolidating the status of incarcerated individuals as holders of substantive rights.

Iftene, Adelina. 2019. “Incarceration in Canada: Risks to and Opportunities for Public Health.” In Tracey Bailey, Tess Sheldon, and Jacob Shelley (eds) Public Health Law and Policy in Canada (4^th edition). LexisNexis Canada. [More information here]

Iftene, Adelina. 2019. “Mr. Big: The Undercover Breach of the Right against Self-Incrimination.” In C. Hunt (ed) Perspectives on the Law of Privilege. Thomson Reuters. [More information here]

Lobel, Jules and Scharff Smith, Peter (eds) 2019. Solitary Confinement: Effects, Practices, and Pathways toward Reform. Oxford University Press. [More information here]

The use of solitary confinement in prisons became common with the rise of the modern penitentiary during the first half of the nineteenth century and his since remained a feature of many prison systems all over the world. Solitary confinement is used for a panoply of different reasons although research tells us that these practices have widespread negative health effects. Besides the death penalty, it is arguably the most punitive and dangerous intervention available to state authorities in democratic nations. Nevertheless, in the United States there are currently an estimated 80,000 to 100,000 prisoners in small cells for more than 22 hours per day with little or no social contact and no physical contact visits with family or friends. Even in Scandinavia, thousands of prisoners are placed in solitary confinement every year and with an alarming frequency. These facts have spawned international interest in this topic and a growing international reform movement, which includes researchers, litigators, and human rights defenders as well as prison staff and prisoners. This book is the first to take a broad international comparative approach and to apply an interdisciplinary lens to this subject. In this volume neuroscientists, high-level prison officials, social and political scientists, medical doctors, lawyers, and former prisoners and their families from different countries will address the effects and practices of prolonged solitary confinement and the movement for its reform and abolition.