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PUNISHMENT: The US Record / Vol. 74, No. 2 (Summer 2007)

July 1, 2007

Arien Mack, Editor

 

Table of Contents

 

Endangered Scholars Worldwide: An Introduction

In this issue of Social research we are introducing a new feature that we hope will appear regularly in our pages. We resolve to dedicate a section of each future issue to a listing of endangered and imprisoned scholars worldwide. We will publish the names of these scholars and provide sources of further details, along with as much information as we can about which actions we are being asked to take on their behalf.

 

Arien Mack

Editor’s Introduction

This issue contains almost all of the papers from the sixteenth Social Research conference, Punishment: The US Record, which took place at The New School in the fall of 2006. The decision to organize a conference on who, what, why, and how we punish criminal acts had several different sources, some obvious -the staggering increase in the number of people incarcerated in the United States in the 1970s and the well known fact that the United States, unlike other Western democracies, reaffirms its dubious claim to exceptionalism by continuing to mandate capital punishment in many states of the union.

 

I. Why We Punish: The Foundation of Our Concepts of Punishment

 

Introduction: Why We Punish

The papers in the first section of this issue are concerned with why we punish. They are focused on two sets of questions. First, do the traditional justifications for allowing the state to impose pain on individuals, for deterrence or retribution or reform, hold any genuine philosophical or empirical weight in the twenty-first century? The second question that this section addresses is why we punish, particularly in the United States, and punish so harshly. The answers are different and provocative and also provide conflicting accounts, particularly of the role of dignity in our legal culture.

 

James Q. Whitman

What Happened to Tocqueville's America

American criminal justice has undergone a sad odyssey over the last 175 years. In the early nineteenth century, when Alexis de Tocqueville arrived to study American prisons, American criminal punishment was regarded as a model for the civilized world. Today, by contrast, America is widely regarded with horror. What happened?  This article focuses on some Tocquevillean themes. The roots of the harsh criminal punishment regime of the contemporary United States have to do with some of the aspects of "Democracy in America" that Tocqueville found most entrancing. These include traditions of popular sovereignty, religious freedom, and social equality. It may be painful for Americans to acknowledge the possibility that some of their most cherished ideals may have ugly consequences for criminal punishment, but they must do so.

 

George Kateb
Punishment and the Spirit of Democracy

The author argues that the pain from crime deterrence has no moral bearing, but the pain of punishment for doing a crime should affect one's moral conscience. He claims that implementing punishment for any law-breaking act need not be justified. He explains his views on the moral issues associated with punishment. He also discusses the concept of legitimacy in punishment.

 

Bernard Harcourt
Post-Modern Meditations on Punishment: On the Limits of Reason and the Virtues of Randomization (A Polemic and Manifesto for the Twenty-First Century)

The author argues that the crucial moment of critical reason and modern attitude influenced each other throughout the 19th and 20th centuries. He explains why he recommends that the society withdrew from the attitude of modernity. He reflects on various inquiries concerning the social meaning of punishment practices. The author emphasizes the need to stop rationalizing hypothesis and begin addressing the indeterminacy of punishment.

 

II. What and How We Punish: Law, Justice, and Punishment

 

James B. Jacobs
Introduction: What and How We Punish

The author reflects on a variety of issues concerning punishment. He explores the impact of increased in criminal laws on punishment practices. He speculates on the current situation and future of criminalization and law enforcement. The author also highlights the caveats of implementing punishment, such as imprisonment and probation and diversion programs.

 

Michael Tonry
Looking Back to See the Future of Punishment in America

The article traces the history of the criminal punishment system in the US since the 1970s. It compares the system of punishment in the US to European countries, along with descriptions on the crime rate situation in each country. It describes the punitive law, practices and beliefs in the US, including imprisonment, mandatory sentences and community services. It argues against the unjustly severe punishments implemented in the country and emphasizes the need to develop new theories that will define punishments imposed in comparable cases.

 

John J. Donohue III
Economic Models of Crime and Punishment

The article presents an exploration into the causes behind the rise in crime rates in the US during the 1960s and their subsequent decline during the 1990s through the economic model of crime as proposed by Gary Becker. Becker's sociomathematical modeling of crime behavior through social cost-reward structures is outlined, highlighting its presence as a counter-view to the success of strict criminal justice programs. The article then argues against the construction of prisons across the US and condemns it for the increasing crime rate in the country. It also emphasizes the need to focus on reducing crime by developing social programs aimed at managing criminal behavior.

 

Andrew Von Hirsch
The "Desert" Model for Sentencing: Its Influences, Prospects, and Alternatives

The article discusses the history, development and influence of the "desert" model of sentencing theory that became influential in the late 1970s and 1980s in the US and western Europe. Contrasts are offered between the desert theory and retributive punishment, highlighting two major arguments for the former against the latter based on the inability to objectively determine the extent of deserved punishment and the ethics of inflicting suffering upon the criminal. Further accounts are given mapping the debate between the two schools of thought during the period and its adoption in several cases. Final conclusions are offered asserting its necessity in contemporary justice theory.

 

David Garland
The Peculiar Forms of American Capitol Punishment

The article presents an exploration into the history of capital punishment within the United States in the 19th and 20th centuries. The author asserts that the diversity of practices of justice throughout US history discourages universal and hyperbolic comparisons between the US system and that of other Western nations. An overview of the structure of the US capital punishment system at the turn of the 21st century is provided, highlighting its complexity. Further discussion is given noting the history of lynching and how it cannot be directly tied to the philosophy of capital punishment in contemporary social and legal criticism.

 

III. Who We Punish: The Carceral State

 

Christopher Uggen
Introduction: Who We Punish: The Carceral State

This introduces various reports published within the issue, including one by Jonathon Simon on the social history of the carceral state and another by Bruce Western on the inequalities in punishment rates.

 

Jonathan Simon
Rise of the Carceral State

The article discusses the social history of the carceral state from the New Deal and Great Society eras to the contemporary period. The philosophy and use of prisons within the U.S. justice system is discussed in-depth throughout the 20th-century, with cursory references to earlier models. The prison administration paradigms adopted throughout the period are examined, highlighting the active large-scale involvement of federal bureaucracy and its damage to the sociological structures of certain at-risk populations. Comments are given suggesting that such systems will not easily be dismantled due to the complex power relationships invested within it.

 

Bruce Western
Mass Imprisonment and Economic Inequality

The article addresses the inequalities in U.S. incarceration rates by age, race and gender. The author shows how imprisonment has become a routine event in the life course for young African American men with less than a high school education. By positioning incarceration rates alongside group- and cohort-specific rates of other life events, the author discusses how society contextualizes the scope and social concentration of punishment within the country. The author also asserts that economic opportunities are reduced by incarceration.

 

Mark Dow
Designed to Punish: Immigrant Detention and Deportation

The article deals with the experiences of immigrants and administrative detainees who were incarcerated within immigration prisons in the U.S. Between 1995 and 2007, the average daily population of U.S. immigration detainees rose from about 6,000 to more than 27,000. Both immigration detention and deportation are considered immigration issues. The courts frequently distance themselves from these issues because of a tradition of giving the executive wide latitude in matters of immigration. Most detained immigrants awaiting deportation after criminal convictions have complained that they are being subjected to double jeopardy since they have already served their sentences.

 

Lorna A. Rhodes
Supermax as a Technology of Punishment

The article considers contemporary supermaximum prisons in the U.S. as hardening institutions in light of the extreme physical and social isolation of inmates. The contemporary supermaximum security or control prison is created to separate prisoners from the general prison population. The author considers three aspects of the technology of supermaximum prisons. The first is the sense in which the supermaximum prison is itself a machine. The second is the utilization of specialized tools of control inside the prison. Lastly, supermaximum technology imposes particular practices and ways of being on both prisoners and prison staff.

 

IV. Consequences of the Carceral State

 

Debbie A. Mukamal
Introduction: Consequences of a Carceral State

The article discusses various reports published within the issue, including one by Elizabeth Gaynes on the effects of incarceration on the children of incarcerated parents and another by David Weiman on the labor market consequences of having a prison record and prison experience.

 

David F. Weiman
Barriers to Prisoners' Reentry into the Labor Market and the Social Costs of Recidivism

The article deals with the labor market consequences of having a prison record and prison experience as a lens for examining the social costs of incarceration. The author believes that a prison record acts as a profound institutional barrier that prevents those on the socioeconomic margin from leaving the secondary market. The labor supply and demand factors point to a widening spatial mismatch between the possible jobs for released prisoners and their residential locations. He suggests that alternatives to incarceration like drug courts can reduce the negative consequence of a prison record and experience and lessen the cycle of recidivism.

 

Todd R. Clear
The Impacts of Incarceration on Public Safety

The article discusses the positive, negative and ambivalent effects of incarceration on public safety. The author cites the effects of incarceration on five separate levels of public safety in the U.S. including individual, intimate relationships, social relationships, institutions and democracy and social justice. He believes that the social effects of incarceration are hyperconcentrated among young, poor, African American men. He claims that the growth of imprisonment can only be viewed as an irony of contemporary culture in the U.S.

 

Jeremy Travis

Back-End Sentencing: A Practice in Search of a Rationale

This article addresses the question of why the back-end sentencing framework has not been applied to the practice of parole revocations. One can note that the language of sentencing jurisprudence has not given much consideration to the workings of the back end of the justice system. If the equal treatment principle were used in back-end sentencing, one would first want to know whether the existing system treats similar cases alike. The application of the just deserts principle to reform efforts in the justice system has led to greater degrees of legislative specification of criminal sentences.

 

V. Alternatives to the Carceral State: A Panel Discussion; Defining Decarceration

 

Brent Staples
Introduction: Defining Decarceration

The mandatory sentencing craze that swept the United States during the late twentieth century distorted the civil landscape in ways that will be difficult to undo. The prison population was driven up tenfold, creating a large and growing felon class that is prone to recidivism and therefore likely to spend much of its life behind bars. Children who grow up visiting parents and siblings in prison have come to view incarceration as a perfectly normal part of life, if not a rite of passage into adulthood.

 

Gordon Bazemore
The Expansion of Punishment and the Restriction of Justice: Loss of Limits in the Implementation of Retributive Policy

This article explores the implications of and remedies for the loss of limits on punishment in U.S. criminal justice. A dominant goal of the academic just desserts movement in the country has been to limit punishment and boost the uniformity of its application. However, the new legitimacy given to retributive punishment seemed to enable legislators and advocacy groups to more openly advocate for expanded prison sentences with lack of consideration for such limits. For instance, few if any standards of justice seem to apply to those who were formerly incarcerated. 

 

Nancy Gertner
Alternatives to the Carceral State: The Judge's Role

The article discusses trend within the U.S. judicial system throughout the 1990s into the 21st-century, particularly regarding the use of sentencing guidelines and the disconnect between public opinion and sentencing practices. Different waves of media coverage portraying judicial leniency or harshness throughout the 1990s are charted. Legal philosophical debate within the U.S. Justice Department and broader justice system concerning the applicability and necessity of formal government guidelines for sentencing is also addressed in-depth.

 

Marie Gottschalk
Dollars, Sense, and Penal Reform: Social Movements and the Future of the Carceral State

This article emphasizes the need to mobilize and organize the public to undo the carceral state in the U.S. In 2007, almost one in every hundred adults in the country is in jail or prison. The relationship between political leaders, social movements, interest groups and governing institutions is accidental and volatile in the case of penal policy due to the blurred left-right divide and of certain institutional features of the criminal justice system and welfare state. If properly presented, economic arguments can help establish a consensus to reverse the prison boom. 

 

James B. Jacobs
Finding Alternatives to the Carceral State

The author comments on the policy and politics of decarceration in the U.S. He questions the reason behind the prison boom and its implications for crime control, as well as the social and political health of the society. He points out that there are many possible paths to decarceration. He contends that much of the imprisonment explosion can be attributed to the proliferation of drug enforcement. He argues that changing the sentencing practices can help resolve the prison boom.

 

Marc Mauer
The Hidden Problem of Time Served in Prison

This article discusses particular policy changes needed to move toward decarceration and addresses the issue of time served in prison. Policymakers and reformers who have been concerned on the prison boom have given more emphasis on the admissions side of the equation. In spite of successes in reducing prison admissions in some jurisdictions, the prison population continues to grow. For instance, the number of people in state prisons increased by 59 percent between 1992 and 2002. The criminal justice policy enacted during the 1990s in several U.S. states have led to a distorted use of correctional resources in states such as California. 

 

Christopher Uggen
Dirty Bombs and Garbage Cases

This article proposes broad approaches for scaling back some of the deleterious effects of punishment without compromising public safety. The collateral consequences of criminal sanctions have an effect on individuals and their families. For instance, ex-convicts carry the stigma of their conviction whenever they apply for a job, secure an apartment or enter a voting booth. One avenue for restoration of civil rights and privileges is expungement clinics and executive pardons, however, such processes are costly and burdensome for even the smallest percentage of former felons who now pursue them. Another option is to reduce the number of collateral sanctions to those necessary to improve public safety.

 

 

 

 

 

 

 

 

 

 

 

 

 

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