'Ritual Individualization': Creative Genius at Sentencing,Mitigation, and Conviction

Judges and lawyers must regard themselves as upholding cherished values, including the presumption of innocence; free defendant choice and participation; and attention to the unique individual. Yet, everyday criminal work also demands compliance with a system of perfunctory, mass case disposal. How is this potential contradiction addressed? Conceiving the criminal‐penal process as a tripartite rite of passage, the article originates the concept of ‘Ritual Individualization’ (RI). RI's creative pre‐sentencing casework accomplishes four key transformations in how the person is re‐presented to the court for sentencing. First, the person's unique voice and personal story is revealed, exhibiting her as a freely participating individual. Secondly, in doing so, the pertinence of social disadvantage tends to be minimized. Thirdly, ambiguous admissions of guilt are translated as freely‐given, full, and sincere confessions. Fourthly, the person is manifested as a culpable offender ready for punishment. The article considers new research agendas opened up by the implications of Ritual Individualization.     

GENDER,SOCIAL NETWORKS,AND RESIDENTIAL BURGLARY*

Criminological researchers have devoted substantial attention to the nature and dynamics of residential burglary, but the role played by gender in shaping this offense remains largely unexplored. Feminist ethnographers have documented the fact that streetlife is highly gendered, and that this typically serves to marginalize women's participation in criminal networks and activities. Therefore, it appears likely that residential burglary—a prototypically social offense that requires good network connections—will be strongly influenced by gender dynamics. In this study, we analyze in‐depth, semi‐structured interviews with 18 female and 36 male active residential burglars to examine the ways in which gender structures access to, participation in, and potential desistance from, residential burglary. In doing so, we aim to provide an insider's view of how gender stereotypes are expressed, reinforced, and exploited within streetlife social networks, and how these networks shape the lived experience of men and women engaged in residential burglary.     

Punishing Bodies,Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State

Although authoritarian rule of law may seem an oxymoron, strategic reconfigurations of the “rule of law” can produce acceptance of law that observes procedure while erasing rights. By bringing into conjunction critical discourse theory and scholarship on the legal professions and political liberalism, this article shows how rulers can deploy rhetoric and legislation to produce derogations from the liberal content of rule of law while sustaining a state legitimacy built on claims to state realizations of rule of law. A close analysis of Singapore's Vandalism Act shows that silencing the critique of lawyers and constraining the power of judges has been crucial to a legitimation of the surveillance and criminalization of dissenters. The consolidation of state power effected via law and discourse might be seen as making the nation a notional panopticon—corporal punishment, even if conducted behind prison walls, becomes instructive public spectacle conveying the state's seeming omniscience and monopolistic command of law.     

Sentence of life without parole: Proposal for the revision of Chinese criminal law in the context of the elimination of death penalty

Death penalty has no alternative. Life without parole (LWOP) has been put forward to nullify the death penalty in China. Practically speaking, LWOP can satisfy the emotional demand of the public so as to nullify the death penalty. LWOP has strong rationales from both retributive and preventive perspectives. Actually, the relation between death penalty and LWOP is just a question, which should be at the top level punishment. Compared with death penalty, LWOP has other advantages such as lower cost burden and more practicability.     

The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long‐term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.     

Putting kids to death: Specifying public support for juvenile capital punishment

Using a statewide sample of 539 Tennessee residents, we explored the extent to which the public supports the death penalty for juveniles. The analysis revealed that a majority of respondents favored juvenile capital punishment, often for young offenders. The respondents, however, were less supportive of juvenile than of adult execution. Most important, as an alternative to juvenile capital punishment, nearly two-thirds of the sample favored life in prison without the possibility of parole (LWOP); four-fifths favored a life sentence with work and restitution requirements (LWOP+W/R). Notably, even among those who endorsed capital punishment for juveniles, a clear majority supported LWOP+W/R. Taken together, these findings reveal that although the public is willing to execute juveniles who commit first-degree murder, they prefer alternative sentencing options that avoid putting youths to death.     

Punishment's Legal Templates: A Theory of Formal Penal Change

The well‐known gap between law on the books and law in action often casts doubt on the significance of changes to law on the books. For example, the rise and fall of penal technologies have long been considered significant indicators of penal change in socio‐historical analyses of punishment. Recent research, however, has challenged the significance of apparently large‐scale penal change of this kind. This article clarifies the significance of penal technologies' rise and fall by offering an alternative account of formal penal change, introducing the analytical concept of “legal templates,” structural models of legal activity (e.g., punishment) available for authorization and replication across multiple jurisdictions. Analyzing punishment's templates explains how new penal technologies can be important harbingers of change, even when they fail to revolutionize penal practice and are not caused by a widespread ideological shift. This article locates the significance of punishment's legal templates in their constitutive power—their ability, over the long term, to shape cognitive‐cultural expectations about what punishment is or should be. This power appears only when the template is widely adopted by a plurality of jurisdictions, thereby becoming institutionalized. Ultimately, these institutionalized templates define the scope of future punishment.     

UNDERSTANDING CHILDREN'S RIGHTS: THEORY AND PRACTICE

This article discusses the meaning of children's rights in the context of the European Convention on Human Rights and the UN Convention on the Rights of the Child. Both place primary responsibility for the upbringing and education of children on their parents and families. The freedom of parents to bring up their children in their own way is an important component of a liberal democracy founded on respect for individual differences. So if parents believe in moderate corporal punishment as a means of educating their children in their own religious beliefs, is the state justified in banning such punishment either in school or in the home in order to protect the children's rights? This article discusses the children's rights which are protected by doing so.     

Death Qualification in Black and White: Racialized Decision Making and Death‐Qualified Juries

Death qualification has been shown to have a number of biasing effects that appear to undermine a capital defendant's Sixth Amendment right to a fair jury. Attitudes toward the death penalty have shifted modestly but consistently over the last several decades in ways that may have changed the overall impact of death qualification. Specifically, the very large gap between black and white Americans' current support for capital punishment raises the question of whether death qualification procedures disproportionately exclude African Americans from capital jury participation. In order to examine this possibility, we conducted two countywide death penalty attitude surveys in the California county that has the highest percentage of African American residents in the state. Results show that death qualification continues to have a number of serious biasing effects—including disproportionately excluding death penalty opponents—which result in the significant underrepresentation of African Americans. This creates a death‐qualified jury pool with the potential to be significantly more likely to ignore and even misuse mitigating factors and to rely more heavily on aggravating factors in their death penalty decision making. The implications of these findings for the fair administration of capital punishment are discussed.     

DOING HER OWN TIME? WOMEN'S RESPONSES TO PRISON IN THE CONTEXT OF THE OLD AND THE NEW PENOLOGY*

Assumptions about gender role socialization dominated explanations for gender differences in responses to incarceration. We suspend these gender comparisons, which produced the focus on homosexuality and kinship networks in women's prisons, to determine how women's pre‐prison experiences, in the context of two different institutions, influence the way they “do time.” We analyze in‐depth interviews with a diverse sample of 70 female inmates housed in the California Institution for Women (CIW)—the oldest prison for women in the state—and Valley State Prison (VSP)—the newest prison for women. These two institutions differ in structure, size, and management philosophy, and accordingly necessitate the consideration of moderating situational effects. We use qualitative analysis to examine how women do time and to determine whether individual variations in doing time are similar across very different institutions.     

Kentuckian’s Attitudes on Capital Punishment, 1989–2016

Citizens’ attitudes toward the death penalty have been effected by the availability of life without parole (LWOP). Our analysis focuses upon data from a representative sample of Kentuckians on death penalty attitudes. The factors influencing and related to death penalty support and compared to support for LWOP are considered along with a review of Kentucky survey findings from 1989–2016. The results reveal consistent support for LWOP over the death penalty. Male Kentucky residents with a college education were most likely to support life without parole over capital punishment while male conservatives did not.     

Addressing Infant and Toddler Issues in the Juvenile Court: Challenges for the 21st Century

To achieve the goal of permanency for children in the child welfare system, it is critical that different disciplines work together, improve communication, and understand each other's role and expertise in the process. Through a case study, this article attempts to show the problems, conflicts, and solutions in working to ensure a child's best interests from three points of view: a children's attorney from New York City, a judge from Miami, Florida, and an infant mental health specialist and interdisciplinary trainer from Los Angeles. First, we propose that emotional caregiving is a fundamental right of all children and includes a stable, nurturing, and permanent long‐term relationship. Conflicts between the timing of children's needs, parents' needs, and the judge's legal duties are discussed as a tension with which we all must struggle to resolve if we are to successfully address children's “irreducible needs” (Brazelton & Greenspan, 2000). If the provision of custodial care shifts toward including emotional care as a goal for the growing number of infants entering the foster care system, the ensuing conflicts will provide opportunities for all parts of the foster care system—including the courts—to rethink how infants' needs are evaluated and factored into decision making.     

Transportation versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State

Existing explanations for historical changes in punishment in Britain have tended to examine the replacement of disorderly prisons and public executions with national penitentiaries from the late eighteenth to the mid‐nineteenth century. Despite their significant contributions to our understanding of how punishments operate in a broader social, political, and economic context, these scholarly accounts have narrowed debate on the mechanisms of penal change to the intentions of penal reformers. This analysis extends this time frame and uses historical data to compare the development of the penitentiary in Britain to its primary, yet less studied, penal substitute, the transportation of felons to America and Australia. In doing so, it provides an alternative explanation for the ascendancy of national penitentiaries. I argue that the development of these penal institutions in Britain was historically made possible by two interdependent sets of changes: (1) changes in the structure and administration of the state's penal apparatus (from decentralized to centralized and patrimonial to bureaucratic); and (2) transformations in popular understandings of the state's power to punish in correspondence with the expansion of a broader and more equal definition of citizenship (democratization). In conclusion, I argue for the value of perspectives on punishment that identify the explicit relationships between state organization and social relations in order to clarify how culture inheres in material conditions to influence specific penal outcomes.     

Coastal Land Management in Florida

During the 1970s, the Florida legislature enacted some of the nation's most innovative and comprehensive state and local land-planning and regulatory programs. The Environmental Land and Water Management Act of 1972 adopted large parts of an early draft of article 7 of the ALI Model Land Development Code, thereby asserting a state regulatory role in areas of critical state concern and for developments of regional impact; Florida's Local Government Comprehensive Planning Act of 1975 introduced planning and regulatory innovations that, if ever fully implemented, could place Florida in the vanguard of land regulatory reform at the local governmental level. This study, which is the concluding part of a study of the evolution of federal, state, and local regulatory roles in the management of coastal land resources, examines the intergovernmental, interagency, and separate-branch tensions that have emerged as Florida moves to implement its new laws. Included, inter alia, is an analysis of the Florida Supreme Court's controversial nondelegation decision in Askew v. Cross Key Waterways. Although Florida can claim some limited successes in program implementation, its land management systems are still not adequately integrated and coordinated, and they have not been implemented as successfully as their proponents thought possible. For example, the state has several alternatives for complying with the federal requirements for an approved management program under the Federal Coastal Zone Management Act of 1972—the comprehensive land management system examined in this study being only one of the available ones. Yet Florida still has been unable to obtain federal approval, and, if it ever does, will be one of the last of the major coastal states to do so. Much of Florida's difficulty in forging a well-integrated coastal land management process is attributable to substantial disagreements on two basic propositions: because of Florida's unique ecological characteristics, coastal land management should not be divorced from comprehensive land management for other purposes; and because of substantial regional diversities within the state, coastal land management in Florida should include a significant planning and regulatory role for local governments as well as for regional and state agencies.     

No Country for Made Men: The Decline of the Mafia in Post‐Soviet Georgia

This article studies the decline of a long‐standing mafia known as thieves‐in‐law in the post‐Soviet republic of Georgia. In 2005 an anti‐mafia campaign began which employed laws directly targeting the thieves‐in‐law. Within a year, all Georgia's thieves‐in‐law were in prison or had fled the country. This article looks at the success of the policy by investigating how Georgia's volatile socio‐economic environment in the 1990s affected the resilience of the thieves‐in‐law to state attack. The article presents data showing that the chaos of this period impacted on the ability of thieves‐in‐law to coordinate activities, regulate recruitment, and protect their main collective resource—their elite criminal status. Due to this, the reputation of the thieves‐in‐law as a mafia drastically declined creating vulnerability. The article adds to the literature on resilience in criminal networks and the study of organized crime in the post‐Soviet space.     

Strategic Challenger Entry in a Federal System: The Role of Economic and Political Conditions in State Legislative Competition

Over a third of state legislators do not face challengers when seeking reelection. Existing analyses of state legislative contestation almost exclusively focus on the stable institutional features surrounding elections and ignore conditions that change between elections. I remedy this oversight by investigating how political contexts influence challenger entry. State legislators—particularly members of the governor's party—more often face opposition during weak state economies, but the president's copartisans are even more likely to receive a challenger when the president is unpopular. My findings suggest that both national‐ and state‐level political conditions have an important impact on challengers' entry strategies.     

Mass Atrocity,Mass Testimony,and the Quantitative Turn in International Law

The article identifies and analyses the development it labels the “quantitative turn” in international criminal law. Addressing the cumulative effect of the large numbers of witnesses in international processes, the article considers quantity as an integral, and substantively beneficial, component of the law's response to atrocity crimes. The article develops a theorized understanding of the relationship between mass atrocity and mass testimony and provides a taxonomy of the functions that the quantity of testimonies fulfills in international trials: the evidentiary, didactic, epistemic, and restorative functions. Focusing on a recent case before the International Criminal Court in the matter of The Prosecutor v. Bemba, the article demonstrates how the different players in the international justice system—Prosecution, Defense, Victims, and the Court—employ the functions of quantity, while negotiating concerns over manageability and scale. The goal of this article is to prompt a debate and a more careful consideration of the potential benefits of a meaningful participation of witnesses and victims in post‐atrocity proceedings. This is particularly important given the dominance of the efficiency paradigm in international criminal law (ICL) discourse, which directly impacts the quantitative turn. The article forges new ways for ICL institutions to maintain a plurality of voices and their commitment to victims while safeguarding the rights of the accused.     

Facing Your Criminal Record: Expungement and the Collateral Problem of Wrongfully Represented Self

While substantial sociolegal research has analyzed the deleterious effects of criminal records on life outcomes, little has examined the records themselves, or their relationship to the people they represent. In this article I take a novel tact, treating criminal records as the material, textual documentations of an individual's past. I then observe expungement seekers—people who encounter their own records—to understand their reactions. From this data, I use inductive theories of symbolic interactionism to theorize another collateral effect of the criminal record: it represents people in ways that depersonalize their social identities, and prevents them from communicating corrective self‐understandings to the governing bodies that author the records. I conclude with my main theoretical contribution: “having a criminal record,” literally, means having a textual proxy that the state has authored on its own terms, without input from the people whom it permanently represents, and while concealing from those people the apparatus behind authorship. As a consequence, the criminal records system serves as a barrier to reciprocal communication between ex‐arrestees and a legal system that represents them in ways that they may want to contest. This “wrongful representation” is a collateral effect of having a criminal record that impedes the ability of ex‐arrestees to manage or repair their relationship with the state that has punished them.     

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert‐based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning‐making, and institution‐building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.     

Creative Death Penalty Reform in China: The Case of Drug Transportation

China's criminal justice system has, for decades, been consistently notorious as one of the world's most punitive. Recent reform of the nation's decades‐long harsh criminal justice policy to instead balance severity with greater leniency has given reformist‐minded judges and legal experts some cause for optimism. However, it has also created a judicial dilemma in determining how to apply this more lenient ethos in sentencing some capital crimes. This is particularly the case for the capital crime of transporting drugs, which is the focus of this article. This article reveals how reform can be achieved through skillful legal maneuvering for a crime category that is caught between two contesting views of the social benefits of punishment.