Handbook on the Consequences of Sentencing and Punishment Decisions

Beth M. Huebner, Natasha A. Frost, Beth M. Huebner, Natasha A. Frost

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138608962
• eBook ISBN: 9780429881466
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Handbook on the Consequences of Sentencing and Punishment Decisions, the third volume in the Routledge ASC Division on Corrections & Sentencing Series, includes contemporary essays on the consequences of punishment during an era of mass incarceration. The Handbook Series offers state-of-the-art volumes on seminal and topical issues that span the fields of sentencing and corrections. In that spirit, the editors gathered contributions that summarize what is known in each topical area and also identify emerging theoretical, empirical, and policy work. The book is grounded in the current knowledge about the specific topics, but also includes new, synthesizing material that reflects the knowledge of the leading minds in the field.

Following an editors' introduction, the volume is divided into four sections. First, two contributions situate and contextualize the volume by providing insight into the growth of mass punishment over the past three decades and an overview of the broad consequences of punishment decisions. The overviews are then followed by a section exploring the broader societal impacts of punishment on housing, employment, family relationships, and health and well-being. The third section centers on special populations and examines the unique effects of punishment for juveniles, immigrants, and individuals convicted of sexual or drug-related offenses. The fourth section focuses on institutional implications with contributions on jails, community corrections, and institutional corrections.

Part I

Consequences of Punishment Decisions

1
Historical Trends in Punishment and the Lens of American Federalism

Michael C. Campbell and Paige E. Vaughn

The well-chronicled increases in imprisonment in the United States (U.S.) in the latter third of the twentieth century have had broad repercussions that have recently triggered a period of reflection. Reformers have begun to ask whether the fiscal costs of mass incarceration are too high and whether gross racial disparities in imprisonment rates exacerbate and perpetuate inequality (Travis, Western, & Redburn, 2014; Aviram, 2015). Certainly, the emerging dominance of a “law and order” ethos that prioritized aggressive law enforcement tactics and harsh punishments for all types of crimes has reshaped fundamental notions of justice and helped transform how Americans have thought about crime and punishment in the last half-century (Clear & Frost, 2014). Among other things, the long-term trend toward greater criminalization and the broadening of legal sanctions has reshaped the political context of crime control in ways that now limit policy options and pervade other key social institutions (Simon, 2007). The legal and policy choices that drove this fundamental shift have had broad and lasting consequences that pervade all levels of American government, have fundamentally altered power structures in the nation’s courtrooms, and have created lawmaking contexts that stymie reform (Clear & Frost, 2014).

Research on changes in punishment in the U.S. since the latter twentieth century, and the broad impact that this has had on America’s institutions, has now extended to provide new and exciting insights into how these processes unfolded at the federal, state and local levels. What might be called the rise of mass incarceration, the “transformation of America’s penal order,” or the growth of the carceral state requires careful attention to how changes in law, policy, and practice unfolded across different levels of American federalism (Campbell & Schoenfeld, 2013; Gottschalk, 2014; Miller, 2008, 2010). Indeed, the nation embarked on an ambitious social program that was unlike others of the twentieth century, and this commitment endured through economic booms and busts and thrived within changing political contexts (Clear & Frost, 2014; Gottschalk, 2014). Federal officials enacted laws that created new incentives for lawmakers and practitioners to expand criminal justice infrastructure and to extend the ways that correctional systems responded to offenders through heightened surveillance and harsher punishments (Murakawa, 2014). State lawmakers continuously rewrote criminal laws in ways certain to increase prison populations, and those lawmakers provided billions of dollars in funding to expand state correctional systems to accommodate the growing tide of inmates, parolees, and probationers. These changes empowered local prosecutors to pursue aggressive penalties for offenders of all stripes, and those actors who might have mitigated the harshest punishments—judges and defense attorneys—saw their power eroded (Simon, 2007; Stuntz, 2011). These changes helped create an adversarial legal system largely unchecked in its punitive response to lawbreaking and helped fuel the creation of an increasingly punitive political context where alternative responses to crime stood little chance of limiting the carceral tide.

The social and political costs of mass incarceration are difficult to assess, but most scholars agree that it has exacerbated racial and class inequalities and weakened political institutions (i.e., Beckett & Sasson, 2004; Clear & Frost, 2014; Gottschalk, 2014; Uggen & Manza, 2005; Western, 2006). The costs of mass imprisonment have not been evenly distributed and have disproportionately affected the urban poor (Mauer, 2004). Mass imprisonment has had profound fiscal consequences that are somewhat easier to measure, as state governments were forced to expand prison facilities to incarcerate offenders within constitutional limits imposed by federal courts (Feeley & Rubin, 1998; Guetzkow & Schoon, 2015). By the millennium, correctional costs were consuming a far greater share of state resources that might have supported other state institutions such as education and mental health facilities (Aviram, 2015). Indeed, mass incarceration now reflects and reinforces deep structural inequalities rooted in an economy lacking sustainable employment opportunities for lower-skilled workers (Apel and Ramakers, Chapter 5; Gottschalk, 2014).

This chapter outlines some of the most important trends in criminalization and punishment, and outlines key findings in the scholarship that works to explain them. We emphasize how explanations of these legal and policy changes require careful attention to American federalism, political arrangements, and institutions that are deeply interrelated and connected to criminal justice systems. We examine how the nation’s adversarial legal system has both been affected by and has helped drive the nation’s incarceration binge by empowering prosecutors with more tools and resources to put more offenders away for longer sentences. These changes eroded judicial discretion and allowed prosecutors to leverage aggressive plea bargains and increase prison commitments for a whole range of offenders, especially drug, violent, and repeat offenders. We show how this operated in local settings, drawing on recent research that highlights how even misdemeanor offenders are punished through court processes. The last section addresses current criminal justice policy developments that seem to favor reform and outlines potential avenues for future research.

Federal Law and Policy

Legal and Policy Developments

The increasingly harsh laws and policies that contributed to the growth of the carceral state in the latter twentieth century were not an abrupt departure from the nation’s longer history. Fear over crime and disorder fueled strong political responses to crime long before mass incarceration took hold, most notably through Prohibition. And several features of American government (i.e., election of prosecutors, underdeveloped welfare state) and social structure (e.g., structural racism) created conditions favorable for a heightened political focus on crime (Gottschalk, 2006). But around the 1960s several powerful socioeconomic and political forces converged to stimulate a historically unprecedented expansion of criminal justice systems and their underpinning logics. Urban unrest, concerns about law enforcement professionalism, rising crime and violence, and the realities of post-Civil Rights era politics all contributed to an energized focus on the nation’s criminal justice systems, especially at the federal level (Flamm, 2005; Schoenfeld, 2018). These events helped stimulate Congressional action that culminated in the passage of the Omnibus Crime Bill and Safe Streets Act of 1968, which created the Law Enforcement Assistance Administration (LEAA). Among other things, LEAA programs provided new funding streams through block grants designed to modernize state and local criminal justice agencies by supporting greater centralization and professionalization (Berk, Brackman, & Lesser, 1977; Feeley & Sarat, 1980). The passage of the Omnibus Crime Bill and Safe Streets Act marked an important escalation in federal engagement with criminal justice systems that had historically been funded and managed by state and local officials.

Federal activity continued to expand during President Richard Nixon’s administration that emphasized the need to aggressively combat drugs and crime and provided more resources for federal agencies and continued to support LEAA activities (Hinton, 2016). Federal courts also played an important role in unsettling criminal justice policies and institutions, especially in corrections, where federal courts issued sweeping rulings that forced states to reform prison systems that were ruled unconstitutional, especially in most Southern states (Feeley & Rubin, 1998). These federal activities did not directly rewrite the state laws that were responsible for the vast majority of prisoners that contributed to the rapid expansion in prison populations in the 1970s, but these developments had significant long-term implications for state law and policy (Campbell & Schoenfeld, 2013). Federal courts unsettled correctional regimes, and new LEAA funding streams stimulated organizational expansion and centralization within state and local criminal justice systems (Feeley & Sarat, 1980; Schoenfeld, 2018). As state lawmakers determined how to distribute large sums of federal funds, local criminal justice actors (i.e., prosecutors, sheriffs, prison guards) became more organized and far more politically engaged in lobbying for their share of resources, and directly shaped criminal law and policy in state politics (Berk et al., 1977; Campbell, 2011; Campbell, 2012).

The 1980s reflected an entirely new level of federal activism in law enforcement as President Ronald Reagan backed up campaign promises to wage a war on crime and drugs by expanding law enforcement and calling for harsher punishments. The Democratic-controlled Congress obliged executive calls to rewrite federal sentencing laws, fund a drastic expansion in the size and reach of federal law enforcement agencies, eliminate federal parole, and expand correctional facilities (Beckett, 1997; Clear & Frost, 2014). These laws not only extended prison sentences but also established mandatory minimum sentences for low-level drug dealing and the possession of crack cocaine and included new requirements and penalties, including those that mandated strict lease enforcement for convicted offenders that encouraged the eviction of public housing tenants (Alexander, 2010; Clear & Frost, 2014). These ancillary penalties ensured that those released from federal facilities or living in public housing would face harsher conditions after prison. The federal incarceration rate doubled during Reagan’s presidency, and sharp growth in the federal prison population persisted throughout the 1990s, cumulating in a 500% increase by the millennium (Bureau of Justice Statistics, 2015). At the same time, federal agencies continued to provide resources to state and local governments to facilitate arrests, prosecutions, and incarceration, indirectly fueling state-level incarceration growth (Campbell & Schoenfeld, 2013).

Aggressive federal legislation expanded with the passage of the 1994 Omnibus Crime Bill, which provided states with billions of dollars to support prison expansion (as long as they passed so-called “truth-in-sentencing” statutes), required states to create sex offender registries, and expanded federal criminal law into several new types of crimes (Clear & Frost, 2014). Then, in 1996, President Clinton proposed “One Strike and You’re Out” legislation that strengthened eviction rules and barred ex-offenders from public housing. This was important because it

not only authorized public housing agencies to exclude automatically (and evict) drug offenders and other felons; it also allowed agencies to bar applicants believed to be using illegal drugs or abusing alcohol—whether or not they had been convicted of a crime.

(Alexander, 2010, p. 145)

On job applications, inmates were forced to check boxes that demonstrated they had been charged with minor or serious offenses (Pager, 2003). Congress then passed and President Clinton signed a law restricting inmate access to federal courts, drastically reducing the already declining federal court activism in regulating the conditions of confinement (Calavita & Jenness, 2014; Feeley & Rubin, 1998).

Some changes in federal responses to drug offenders during the Obama Administration seemed to suggest that the grip of the carceral state might be weakening. Federal sentencing reforms were implemented that reduced the most punitive sentences for low-level drug offenders and attempted to address the racial disparities generated by the crack versus powder cocaine distinctions (Holder, 2016). Federal agencies have supported some community-based programs and have provided support for the implementation of “evidence-based practices” that claim to reduce the severity of sanctions for lower level offenders and improve public safety by targeting more serious offenders with supervision and programming (Clear & Frost, 2014). These changes seemed to mark an important rethinking of the wars on crime and drugs that gained considerable bipartisan momentum as questions about effectiveness and concerns about cost grew (Aviram, 2015). However, the 2016 election and policy changes implemented in the early stages of the Trump Administration that echo the war-on-drug era reinforce how changes in political context can threaten momentum for reform (Horwitz, 2017).

Explanations

Scholars have identified a number of forces that likely abetted the national-level shift toward a more active and aggressive federal role in law enforcement and the formation of the carceral state. David Garland’s (1990, 1996, 2001) work has pointed to greater demands for social control and growing skepticism of the state’s effectiveness in responding to crime. Garland suggests that rehabilitative values and ideologies characterized punishment in early twentieth century America, but that punishment practices were plagued by doubt, dissatisfaction, and confusion that fostered a new era where many policy makers and practitioners shifted to a “nothing works” mentality (Garland, 2001). Fundamental changes in social and economic institutions eroded public faith in the state’s ability to effectively respond to social problems, eroding public confidence in criminal justice practitioners and criminological scholars.

Others have situated the heightened focus on crime within broader shifts in politics. Katherine Beckett (1997) points to racialized political strategies that exploit crime and skewed media portrayals of its seriousness (2004 with Theodore Sasson). For example, news media portrayals of violent crime disproportionately focused on crimes involving black offenders and white victims (Beckett, 1997; Beckett & Sasson, 2004). Politicians deployed highly racialized rhetoric that linked urban unrest and black protests to street crime and called for a return to “law and order,” which operated as code for using the state to control African Americans who were no longer bound by the laws upholding segregation (Alexander, 2010; Beckett & Sasson, 2004; Weaver, 2007). Rather than rising crime rates driving public punitive opinion shifts and attendant political responses, this line of scholarship points to crime’s utility as a political wedge issue. Jonathan Simon extends a similarly political take, linking fear mongering politics to a broader shift toward “governing through crime” in which the same technologies and mentalities from crime control penetrated various institutions with problematic consequences (Simon, 2007). Political executives, especially presidents and governors, strategically deployed crime to expand their powers and their ability to alter the lives of law-abiding citizens as well as inmates and formerly incarcerated persons (Simon, 2007). Whereas in the past, presidents and governors adhered to regulatory and protective roles, such actors were provided the authority to control and “fight crime” to satisfy the fearful and angry public, becoming “prosecutors in chief” (Simon, 2007). Not only is governing through crime “making America less democratic and more racially polarized,” but through the promotion of fear and paran...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of Contributors
• Acknowledgments
• Introduction
• Part I Consequences of Punishment Decisions
• Part II Broad Impacts
• Part III Consequences of Sentencing Decisions
• Part IV Institutional Contexts
• Part V Broad Implications
• Index