Scaling Up or Scaling Back? The Pitfalls and Possibilities of Leveraging Federal Interventions for Abolition

Antiprison activists have often turned the federal court system to reduce the violence of the carceral state. However, such reform attempts have too often had the unintended consequence of fortifying the penal system. In this article, I interrogate one such intervention—a federal court order that encompassed the Louisiana Department of Corrections from 1975 to 1998. I argue that while the lawsuit was declared a success in reforming Angola, the federal court’s intervention buttressed and legitimated the growth of the Louisiana penal system. This paradox was produced through the limits of liberal reform ideology that failed to recognize the structural violence of incarceration. Rather, the federal courts located violence with prisoners instead of the punitive power of the state and racial capitalism. This framework not only led to an increase in punitive practices within Angola, it came to underpin penal expansion as the primary solution to cyclical overcrowding.     

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

Redemption and reproach: Religion and carceral control in action among women in prison

Criminologists are increasingly interested in how a variety of justice-adjacent institutions scaffold surveillance and punishment in the U.S. criminal justice system. A relevant but understudied institution within the carceral state is that of religion. Drawing on 12 months of ethnographic fieldwork inside a U.S. state women's prison, I interrogate how religion—predominately conservative and evangelical Protestantism—served dual purposes in light of carceral control. Religion offered redemptive narratives to counter punitive carceral narratives promulgated by the state. At the same time, this narrative shift from “flawed” to “faithful” prescribed particular forms of embodiment: avoiding fights and rejecting sexual relationships with women. These forms of Protestant embodiment aligned with carceral purposes, such that women who reprimanded others for breaching religious norms were simultaneously enforcing prison rules. Although rhetorically challenging official prison narratives on the meaning of incarceration, Protestant narratives in practice regulated women's emotional and sexual behaviors and fostered a system of informal surveillance among incarcerated women. These findings illuminate how organizational narratives are linked to individual action. More broadly, they suggest how an institution such as religion can undergird state authority within an intractable context of carceral control.     

PRIVATIZING PUNISHMENT: TESTING THEORIES OF PUBLIC SUPPORT FOR PRIVATE PRISON AND IMMIGRATION DETENTION FACILITIES

The transfer of authority over the supervision of inmate populations from state and federal governments to private corporations is one of the most significant contemporary developments in the criminal justice system. Yet, the controversy surrounding the private prison industry has occurred in U.S. criminal justice policy circles without any understanding of the public's preferences toward these institutions. In this article, we test several theories that potentially explain opinions toward privatizing carceral institutions: the racial animus, business is better, conflict of interest, and problem‐escalation models. These models are tested with original data from the 2014 Cooperative Congressional Election Survey. The data show that opinions toward the privatization of carceral institutions do not neatly fall along partisan or ideological divisions but are explained by beliefs about racial resentment, corporate ethics, and the potential ability of private companies to provide services cheaper than the public sphere. The results hold important implications for how we understand the future of private carceral institutions in the United States.     

Policy Innovation or Vertical Integration? A View of Immigration Federalism from the States

Since 2005, state legislatures have passed hundreds of immigration bills, and state officials have argued that their efforts attempt to solve immigration crises caused by federal inaction. The state–federal clash over immigration seems to confirm scholarship suggesting deepening lines of conflict in the federal system since the 1990s. The question remains, however, whether this explosion in state immigration laws signifies a move by states to tailor their own solutions to immigration issues. This article explores whether states are serving as laboratories of innovation for immigration policy. The study analyzes over five hundred immigration bills passed between January 2006 and December 2008, and engages in a comparative analysis of three immigration policy areas (immigration law enforcement, employment regulations, and drivers' licenses) where there exist varying degrees of state autonomy from national policy and thus distinctive possibilities for states to offer creative approaches to immigration issues. The findings suggest little evidence of policy innovation at the state level, although a handful of states are challenging federal supremacy in immigration matters.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

Class, Status, and the Punishment of White-Collar Criminals

The treatment of white-collar offenders by the criminal justice system has been a central concern since the concept of white-collar crime was first introduced In general, it has been assumed that those higher up the social hierarchy have an advantage in every part of the legal process, including the punishment they receive as white-collar criminals. In a controversial study of white-collar crime sentencing in the federal district courts, Wheeler, Weisburd, and Bode contradicted this assumption when they found that those of higher status were more likely to be imprisoned and, when sentenced to prison, were likely to receive longer prison terms than comparable offenders of lower status. While they argued that results were consistent with "what those who do the sentencing often say about it," their analyses failed to control for the role of social class in the sentencing process. In this article we reanalyze the Wheeler et al sentencing data, including both measures of socioeconomic status and class position. Our findings show that class position does have an independent influence on judicial sentencing behavior. But this effect does not demand revision in the major findings reported in the earlier study.     

DACA legal services: One federal policy,different local implementation approaches

In the United States, the absence of federal funding and coordination for immigration legal services often means that local resources determine immigrants' access to justice. Many of these resources go toward supporting immigrants caught in the detention and deportation system. Yet local support is also critical for implementing federal benefits programs such as the 2012 Deferred Action for Childhood Arrivals (DACA) program. In this article, we draw on 146 interviews with representatives of legal services providers and their nonprofit collaborators in three immigrant-dense metropolitan areas—the Greater Houston Area, the New York City Metro Area, and the San Francisco Bay Area—to analyze the distinct, place-specific service and collaboration models that have emerged over the last decade to meet demand for DACA implementation support. Specifically, we examine how local context shapes the types of actors that immigrants can turn to for immigration legal services, and how they have coordinated on the ground in distinct ways during a time of increasing uncertainty.     

Class Jurisprudes: Free Labor Ideology and For‐Profit Penal Labor in Gilded Age Courts

For‐profit penal servitude flourished in Gilded Age America. Prisoners produced consumer goods inside factory‐penitentiaries for private enterprise. Regulations protecting free labor encountered litigation by businesses invested in carceral capitalism. Judges who defended “liberty of contract,” maintained “state neutrality,” and condemned “class legislation” exhibited a different approach when evaluating labeling laws. Such statutes were seemingly consonant with the free labor ideology that dominated appellate benches—they remediated markets distorted by state‐created privileges. Yet courts routinely struck them down. This article argues that judges were motivated by a class‐infused framework structuring interpretation of facts and aliening lower‐class Americans. Judges perceived workingmen who sought remedial assistance as seeking class legislation; they saw prison inmates and products as ordinary workers and goods, not as captive manpower and state‐subsidized wares. Jurisprudence bent and bowed from judges’ values and associations. This article thus reintroduces the explanatory power of class to the Lochner era through judicial subjectivity.     

Incarceration and the Legitimate Labor Market: Examining Age‐Graded Effects on Employment and Wages

Over the past 30 years, the U.S. inmate population has increased dramatically, and the penal system has acquired growing attention in accounts of recent trends in economic stratification. As the prison system has expanded, its population has aged; incarceration rates have risen sharpest among older age groups. A large body of research documents differences in criminal offending and incarceration over the life course, but little attention has been paid to how the effects of spending time in prison depend on the timing of incarceration in the life course. Using state administrative data that provide significant variance in the age of offenders, this article investigates how the timing of incarceration in the life course influences its effects on post‐release employment and wages. We do not find consistent evidence that incarceration effects vary by age at admission. Instead, incarceration appears to have important consequences for employment and wage outcomes regardless of when individuals are admitted to prison. Even the most motivated offenders suffer sizeable and significant wage penalties and, over time, decreased likelihood of employment. These findings underscore the relevance of legal and institutional shifts associated with carceral expansion and the aging of the inmate population for life course theories of criminal desistance, accounts of labor market inequality, and prisoner reentry programs.     

In the Best Interests of an Indian Child: The Indian Child Welfare Act

Before passage of the Indian Child Welfare Act in 1978, state, private, and federal agencies systematically removed Indian children from their families and tribal communities, placing them with non‐Indian families with little appreciation for the detrimental impact that cultural deprivation would have on these children. State courts often ignored the sovereign authority of tribal courts with regard to their children, and were, more often than not, unwilling to acknowledge the importance of the perspective of the child's tribe and/or extended family members. With passage of the Indian Child Welfare Act in 1978, Congress imposed upon state child welfare practices substantive and procedural requirements to which state courts must adhere, most notably the mandate that state courts must now give primary consideration to the placement of Indian children within their extended families and tribal communities. In addition, federal law requires state courts to recognize tribal court authority and jurisdiction over tribal children. This article reviews the history of federal, state, and private practices that propelled Congress to pass the ICWA, the changes that have resulted from this vital legislation, and the challenges that face courts in ensuring that state courts meet these requirements.     

Dreams Deterred: The Collateral Consequences of Localized Immigration Policies on Undocumented Latinos in Colorado

Recent years have seen a broadening of the scope of immigration enforcement. As a result, immigrants free of criminal convictions, once considered low priorities for enforcement, are increasingly subject to arrest, detention, and removal. At the same time, federal immigration authorities have sought the cooperation of states and localities in the enforcement of immigration laws. While there has been growing scholarly attention paid to the ways in which legal geographies can account for variation in local immigration policies, the long‐term effects of these policies on immigrants themselves are often overlooked. In this article, we use the case of Colorado, one of the first states to pass a “show‐me‐your‐papers” law in 2006, and data from two qualitative studies to highlight the collateral consequences of enhanced immigration enforcement on immigrants’ economic opportunities, emotional health and well‐being, and academic trajectories. We situate our analysis within the crimmigration literature and discuss the implications of our findings in light of the current political climate.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Malign Neglect or Benign Respect

Abstract

A central tenet of feminist criminological scholarship is the examination of women's experiences with crime and incarceration through their own narratives. Through semi-structured interviews with thirty jailed women, this article examines carceral conditions through the critical lens of the female inmate. Highlighted in this article is the availability and quality of health care in a detention center in Arizona. The findings indicate a contentious duality, exposing both heinous neglect and benign solicitude in the care delivered to jailed women. This duality is situated within the dismal health care system available to indigent women in the region.     

‘Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses

This article analyzes the use of a federal affidavit of support, a required document that forms part of all family immigration petitions to overcome public charge grounds of inadmissibility. The federal statute mandating affidavits of support was altered in 1996 in an attempt to make them contractually binding, even after the dissolution of marriage. Further, affidavits of support implicate not only obligations between spouses, but also deeming analysis for public benefit eligibility. Case law interpreting these affidavits of support is scarce and varied, but trends, patterns, and contested issues are emerging. Yet courts have not settled on any theory and practice for incorporating these affidavits into their decisions related to family dissolution. This article provides an introduction to affidavits of support and an initial effort to frame the most critical issues related to them that arise in family litigation. This article also highlights some of the key strategic issues and caveats for litigants and parties.

Key Points for the Family Court Community:
• An introduction to affidavits of support and the immigration law context in which it exists
• A review of trends, patterns, and contested issues emerging in available judicial decisions in state and federal courts
• Key strategic issues and caveats for litigants and parties on the use of affidavits of support

     

Comparing deep-end confinement in England & Wales and Norway

Extreme forms of custody represent the boundary points of state power. The configuration of the most restrictive corners of prison systems, and what goes on within them, is highly instructive in exposing the objectives, limits, and implications of state coercion at its most severe. Based on data collected in England & Wales and Norway, this article has two main aims. The first is to explore the degree to which “deep-end” confinement differs between jurisdictions with different penal philosophies. The second is to understand how the most extreme form of confinement in each jurisdiction differs from the more typical carceral experiences within each system and its overall penal ethos. Empirically, then, the article seeks to shine light into the deepest dominions of both prison systems, illuminating the experiential texture of extreme forms of imprisonment. It concludes by asking what can be inferred about Nordic exceptionalism, and about deep-end confinement more generally, by analyzing these domains.     

The Structure of American Legal Institutions and the Diffusion of Wrongful‐Discharge Laws, 1978–1999

This article evaluates how the social structure of American legal institutions influenced the diffusion of wrongful‐discharge laws over the period 1978–1999, and it assesses whether economic or political variables influenced the diffusion process. The results are surprising and quite striking. Precedents by other courts within the same federal circuit region were generally more influential in the diffusion process than precedents by courts in neighboring states or by courts within the same census or West legal reporting region, even though the precedents were on matters of state law rather than federal law and the decisions were usually made by state courts rather than federal courts. There is some limited evidence that political variables may also have been a factor, but economic variables were not statistically significant, even though the new employment laws may have had important economic consequences.     

The criminalization of immigration and the privatization of the immigration detention: implications for justice

In recent decades, the criminalization of immigration and the use of private prisons have increased in popularity. The criminalization of immigration and the privatization of prisons work hand in hand in shaping the American criminal justice response to immigration. Privatization creates a powerful opportunity for the social construction of the undocumented immigrant into a powerful potential source of revenue for for-profit corporations. Private prison corporations, such as Corrections Corporation of American and The GEO Group, stand to profit significantly from the private immigration detention center. Several investigative reports have focused on how these companies stand to profit, but little attention has been given to the psychosocial consequences that impact immigrant detainees and their families.     

The Attica litigation

In September of 1971, twenty-nine inmates and ten prison employees were killed at New York's Attica Correctional Facility when state law enforcement agents forcibly regained control. In the two decades since, aborted attempts at criminal prosecution have been followed by a maze of civil litigation in state and federal courts as prisoners, Attica employees, and their estates have sought monetary compensation for injuries, wrongful death, and alleged violations of civil rights. This paper draws together the major litigation stemming from the 1971 Attica events and suggests some implications for law and social control.