Rethinking Punishment

Challenging Conventions in Research and Policy

Karol Lucken

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138891197
• eBook ISBN: 9781317486978
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

There are visible signs that the "get-tough" era of punishment is finally winding down. A "get-smart" agenda has emerged that aims to reduce costs and crime by reducing the incarceration of non-violent drug offenders, expanding use of community-based corrections, revising sentencing structures, and supporting offender re-entry into the community. This change in policy affords an opportunity to re-examine and challenge certain other conventions in the study and practice of punishment.

Each chapter of Rethinking Punishment examines a convention and posits arguments that challenge that convention and expand the conversation. These arguments are based on the prior literature, existing and original data, and historical documents. These conventions and arguments for rethinking punishment are framed accordingly:

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• Justifying Penal Policy

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• Defining the Attributes of Punishment

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• Measuring the Scope and Severity of Punishment

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• Evaluating Effectiveness in Punishment

Finally, the author provides specific recommendations for research and policy based on these original arguments. Drawing on underlying philosophical, empirical and political issues and offering a critical discussion of the relationship between research, policy and practice, this book makes compelling and instructive reading for students taking courses in criminal justice, corrections, philosophy of punishment, the sociology of punishment, and law and justice.

1
INTRODUCTION

For the past several years, legislative and other policy activity at the state and federal level give strong indication that the “get-tough” era is finally winding down. To quote State Representative Jason Chaffetz of Utah, it appears that “it is no longer enough to be tough on crime, we have to be smart on crime as well” (Canham, 2015). Although it is too early to tell how far these “get-smart” changes will go and how long they will be sustained, the changes that have unfolded thus far are note-worthy to be sure. These changes are reviewed in the following section, however, the book is not about these changes per se. It is about the implications of these changes for several standing questions in research and policy.

The standing questions addressed in this book are philosophical, political and scientific. They concern the justification (Why Punish?), definition (What is Punishment?), measurement (How Much Do We Punish?), evaluation (What Works in Punishment?), and prescription (How Do We Prescribe Policy?) of punishment. In examining these questions, I consider how they have been addressed conventionally in the research and policy discourse and how they might also be addressed going forward. My underlying argument is that in the mainstream punishment discourse, the answers or approaches of late have become too patterned or status quo. This taken-for-granted thinking in addressing these questions forms the basis for rethinking punishment.

Rethinking or calling attention to conventions does not mean that what has been said needs to be abandoned or refuted altogether. It simply means that certain issues that have been overshadowed or ignored for too long should also be highlighted. For example, the monetization of penal policy, or what I call economic pragmatism, has advanced as a justification with little notice or concerted opposition. Also, with few and mostly dated exceptions (American Friends Service Committee, 1971; Lucken, 2013; Simon, 1998; von Hirsch, 1976), scarcely any discussion exists on how punishment should be defined legally or for purposes of scholarly study. Punishment is still conceptualized overwhelmingly as prison, probation, parole, and jail, despite a control apparatus that has been metastasizing for decades (Austin & Krisberg, 1981; Blomberg & Lucken, 2010; Cohen, 1985; Garland, 2001; Gordon, 1990; Staples, 2000). Relatedly, systematic measurement of how much we punish has not ventured very far either. It too remains fixed on state and federal prison, probation and parole populations, though the criminal justice system is highly decentralized and diversified in its sanctioning capacity. The evaluation and prescription of punishment are equally myopic. Here, the convention is the unremitting focus on offender recidivism and “what works,” and the subsequent policy recommendation to increase or decrease use of some program or rehabilitative strategy.

The conventional thinking I have alluded to has been nurtured, in part, by a couple of factors. One factor is the instrumentalist demand for effective punishment. In policy and research, the evaluation of punishment has been dominated by the question of “what works” and the outcome of crime reduction. A second factor, which has shaped academic thinking in particular, is decades of get-tough policies. Cullen and Gendreau (2001: 313) note that a “central premise of the sociology of science is that academic thinking, like that of the ‘common’ person in society, is shaped by the prevailing social context.” Given the roughly 40-year life span of get-tough, it is not surprising that certain research priorities and paradigms have taken command of the conversation. For example, the topic of mass incarceration has steered theoretical analyses, empirical analyses of correctional populations, and evaluation interests, such as the effects of mass incarceration on crime, government expenditures, communities, and families. As a result of get-tough, certain variables, research problems, data collection targets, interpretive frameworks, policy recommendations, and the like have become normative in the mainstream punishment literature.

Assuming the transition from “get-tough” to “get-smart” represents a change in social context, perhaps now is the time to open up the dialogue and rethink some of these conventions. The penal policies that have been taking shape in the name of “get-smart” are discussed below and provide an important pre-text for the challenges, questions and observations that animate this book.

From “get-tough” to “get-smart”

The emergence of a “get-smart” agenda means that calls by elected officials to halt mass incarceration are no longer viewed as career-ending proposals. The tragedy of mass incarceration, especially as it pertains to the African American community, has even become a rallying point in the Democratic Presidential Primary of 2016. The developing “get-smart” mindset has also meant that support for traditionally liberal policies is once again viable. These policies include offender reentry services, community-based alternatives, and treatment programming for substance abuse and other offender deficits.

The impetus for this policy shift is no doubt multi-faceted, but one precipitating factor that is undeniable is the economic collapse of 2008 (Gottschalk, 2011). The rash of budgetary crises that followed this collapse awakened some of the most ardent political conservatives to the unsustainability of mass incarceration. Under the banners of “Right on Crime” and “Smart Justice,” these unlikely political collaborators have since advanced the position that current levels of imprisoning are fiscally untenable. Though conservative spokespersons have been quick to assert they are not soft on crime, “Right on Crime” and “Smart Justice” groups do lobby for policies that not too long ago would have been seen as exactly that. For example, they advocate reforming offenders, diversion programs for non-violent drug or mentally ill offenders, and intermediate sanction facilities for technical violations of probation (Smart Justice Alliance, 2013).

There is now a fair amount of consensus among the political right and left on how best to reduce costs, crime and prison populations. A strategy supported by members of both parties as well as reformist groups is to reduce the incarceration of non-violent drug offenders and increase community alternatives for a range of non-violent offenders in general. The use of evidence-based practice and incentives to promote offender and system success are other policy areas where common ground exists.

This policy shift is manifested at the federal level under the 2013 Department of Justice “Smart on Crime” initiative. Spearheaded by then Attorney General Eric Holder, this initiative has authorized a comprehensive review of the federal criminal justice system in addition to funding for new state and local programs. The review has also sought to ensure that federal laws are being enforced fairly and costefficiently, producing, in the words of Holder, an “historic sea change” in policy. In observance of these goals, The Department of Justice has assessed federal practices in prosecutorial decision making, sentencing, incarceration, and offender reentry.

The comprehensive review of the federal system has also coincided with several bi-partisan legislative initiatives. One initiative is the unanimously-supported 2010 Fair Sentencing Act, which scales back penalties for certain drug offenses. This law reduces excessive penalties for federal crack cocaine offenses, such as mandatory minimums for low level drug offenses that have no connections to major drug organizations or cartels. Another legislative contribution to this “get-smart” campaign is the Smarter Sentencing Act. If passed, it will allow for the retroactive application of the 2010 Fair Sentencing Act and thus the potential release of certain drug offenders sentenced before 2010 under the stiffer federal sentencing guidelines. The Act also proposes to reduce the five, 10, and 20-year mandatory minimum sentences for many federal drug crimes to two, five, and 10-year terms, respectively. Though the 2014 Smart Sentencing Act died in the Senate Judiciary Committee (Civic Impulse, LLC, n.d.), an equivalent bill has been proposed in the House Judiciary Committee called the Smarter Sentencing Act of 2015 (U.S. Library of Congress, n.d.).

In 2010, the Bureau of Justice Assistance and Pew Charitable Trusts added to these efforts by implementing the Justice Reinvestment Initiative. As a result of this joint initiative, 17 states have received technical assistance funding to advance system-wide reform using data-driven analysis. These state reforms are expected to reduce existing prison populations and prevent the growth of this population in the future. The cost-savings achieved by these reforms are to be re-invested in evidence-based alternatives to enhance community safety (LaVigne et al., 2014). As of 2015, five states (Texas, Rhode Island, South Carolina, Kentucky, Georgia) have reduced their imprisonment rates by as little as 3 percent and by as much as 17 percent, which is a continuation of decreases already begun in 2013 (Pew Charitable Trusts, 2015). However, the status and impact of the reinvestment portion of this initiative is unclear, at least as of yet.

The federal government has been leading the charge for many of these “get-smart” efforts, however, several states had already been moving in the direction of reform. According to a Vera Institute report, since 2000, 29 states have repealed or begun to modify mandatory minimum sentences (Subramanian, Moreno & Broomhead, 2014). At least seven states have revised their sentencing structures to allow for more proportionate (i.e., less harsh) penalties for certain felony offenses (ibid.). In 2013, a smaller number of states also implemented laws that would expand the use of community-based alternatives. These alternatives include diversion programs, problem-solving courts, graduated responses to violations of community supervision conditions, and greater use of incentives in community supervision (ibid.). Overall, in 2013, 35 states passed at least 85 bills that changed some aspect of their sentencing and corrections system (ibid.). According to the Vera Institute, these policy changes have targeted five areas, namely reducing prison populations and costs; expanding or strengthening community-based corrections; implementing risk and needs assessments; supporting offender reentry into the community; and making better informed criminal justice policy through data-driven research and analysis (ibid.).

Given the centrality of the war on drugs to the get-tough agenda, it is also noteworthy that 24 states have legalized marijuana for medicinal purposes. In 2013, 19 more states attempted the legalization or decriminalization of marijuana. In Portland, Maine and three Michigan cities, voters passed ordinances permitting possession of 2.5 ounces of marijuana for those 21 years of age and over (ibid.). The city of Orlando is one of the latest jurisdictions to consider decriminalizing the possession of small amounts of marijuana. This all comes on the heels of Washington and Colorado’s legalization of marijuana for recreational use.

Another key indicator of get-tough’s diminishing status is the recent declines in prison admissions and populations. Between 1980 and 2013, the federal imprisonment rate increased 518 percent, but since 2006, new commitments to federal prison have declined every year (Pew Charitable Trusts, 2015). According to the Bureau of Justice Statistics, the federal prison population had declined by 5,300 prisoners in 2014. Some projections suggest that by the end of 2016, the federal prison population will drop by another 10,000 inmates (Carroll, 2015).

After decades of unprecedented increase, the combined state and federal prison population has also declined every year between 2006 and 2012. In 2006, the total state and federal prison population stood at 747,031. By 2012, it had fallen to 609,781 (Carson & Golinelli, 2013). State prison populations alone have seen modest but yearly declines since 2006 as well. The Vera Institute reports that 15 states have experienced reductions in prison populations and costs (Subramanian et al., 2014). New court commitments to state institutions have also decreased every year between 2006 and 2012; that figure increased by a small margin in 2013, however. Parole violator commitments to state institutions, which for some states are a significant driver of prison populations, have also fallen well below their peak of 248,645 in 2008. Parole commitments fell to 148,028 in 2012, increasing to 159,220 in 2013 and to 159,506 in 2014 (Carson, 2015), which is still well below the peak number of commitments in 2008.

A final indicator of this penal policy shift is the much talked about offender reentry movement. This movement has been motivated by the roughly half a million inmates being released each year, many without benefit of supervision, treatment, or other post-release assistance. Though the concept of reentry and the programming associated with it have not been well-defined, reentry can be generally understood as any effort to address the needs and risks of soon-to-be or newly released inmates. Transition programs, access to social services, and community monitoring have all been touted as vehicles for improving public safety and offender reentry prospects.

Offender reentry has also been promoted as a form of civic reinstatement through the restoration of voting rights and other benefits of citizenship (Maruna & LeBel, 2003; Uggen, Shannon & Manza, 2012). This has led to attempts to remove or temper employment and other eligibility barriers for ex-offenders. “Ban the box” or “fair-chance” hiring initiatives that eliminate or alter the timing of prior record questions on job applications are chief examples of these attempts. According to the National Employment Law Project, 20 states and over 100 cities and counties have taken action to address public sector employment barriers for qualified workers with prior records. Of those, seven states, the District of Columbia, and 12 cities and counties have extended their fair-chance hiring policies to local private sector employers (National Employment Law Project, n.d.). In November 2015, President Obama took the step of directing th...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• List of tables
• Acknowledgments
• 1 Introduction
• 2 Justifying punishment: a moral and economic defense of policy
• 3 Defining punishment: the essential attributes of penal activity
• 4 Measuring punishment: the scope and severity of penal activity
• 5 Evaluating punishment: “what works” and the pursuit of effectiveness
• 6 Prescribing punishment: alternative directions in research and policy
• Index