Beyond Punishment: The Penal State's Interventionist,Covert, and Negligent Modalities of Control

This article investigates the involvement of the penal state in the lives of criminalized people as a controlling force that takes multiple forms. We offer the concept of modalities of penal control and identify three such modalities in addition to expressive punishment: interventionist penal control is accomplished in extralegal ways; covert penal control is hidden from public view; and negligent penal control is characterized by the absence of action by state actors. This article illustrates empirical cases of each modality, using data from three distinct projects based in Chicago, southern Wisconsin, and nationwide. The data include observations of post‐prison groups and homes, interviews with criminalized people and nongovernmental organizational (NGO) staff, statutes, and regulations. This expanded understanding of penal state involvement extends beyond the understanding that characterizes discussions of mass incarceration and highlights the need for comprehensive reform.     

What Can We do to Engender a More Rational and Less Punitive Crime Policy?

This paper examines the question of what can we do, at a practical level, to respond to penal populism. It is argued that a comprehensive understanding of the nature of penal populism provides the best base for considering a range of responses across the full spectrum of precipitating factors. The paper begins with a sketch of the main understanding of penal populism articulated in earlier works, principally Roberts et al. (2003), then the putative causes of penal populism are expanded considering the contributions of precipitating factors at six levels. A number of suggestions and strategies at each of the six levels is then provided. Rather than being competing these strategies at different levels are seen as complementary although some will be more realizable than others. The paper finishes with a focus on the topic of public inclusion into the development of policy. A democratization of policy, it is argued, is crucial and, ultimately, the most profound way of addressing the challenge of penal populism.     

Who’s afraid of penal populism? Technocracy and ‘the people’ in the sociology of punishment

Contemporary sociologists of punishment have criticized the rising incidence of incarceration and punitiveness across the Western world in recent decades. The concepts of populist punitiveness and penal populism have played a central role in their critiques of the burgeoning penal state. These concepts are frequently sustained by a doctrine of penal elitism, which delegates a limited right to politicians and ‘the people’ to shape institutions of punishment, favoring in their place the dominance of bureaucratic and professional elites. I argue that the technocratic inclinations of penal elitism are misguided on empirical, theoretical, and normative grounds. A commitment to democratic politics should make us wary of sidelining the public and their elected representatives in the politics of punishment. A brief discussion of Norway’s legal proceedings against Nazi collaborators in the mid-1940s and the introduction sentencing guidelines commissions in Minnesota in the 1980s shows – pace penal elitism – that professional elites may variously raise the banner of rehabilitationism or retributivism. While penal elitism may yield a few victorious battles against punitiveness, it will not win the war.     

The polyamorous threat to nonmarriage

Some progressive U.S. Cities and several Canadian provinces now provide mechanisms for polyamorous families to register as such with state authorities. More than a million people in the United States identify as polyamorous and many more practice some form of ethical nonmonogamy. This article suggests that the growing recognition of polyamory poses a substantial threat to a simultaneous development in family law: the call by scholars and the Uniform Law Commission for courts to enforce a more implied contract, implied partnership and equitable claims in the context of non-marital conjugal cohabitation. Non-marital cohabitants argue that courts can infer marital-type commitments to share property from the fact of conjugal cohabitation. They argue that their nonmarriage should entitle them to the kinds of relief afforded to divorcing couples. But polyamorous conjugal cohabitation involves very different norms and commitments to reliance, partnership and transparency than does traditional marriage. Marital-type relief maps awkwardly, if at all, onto the reality of most polyamorous relationships. By bringing into relief that which we cannot necessarily assume about conjugal cohabitation, the recognition of polyamory questions what many proponents of more legal protection of nonmarital couples ask courts to assume about conjugal cohabitation, namely that it gives rise to reasonable reliance on a status quo and an intent to share property. Moreover, by providing a means for polyamorous households to register their relationships, polyamorous registration normalizes the idea of non-marital relationship registration. The more normal and expected it is for people who want rights as some form of family to register their familial intent with the state, the harder it is for those who have not so registered to argue that the state must treat them as some sort of family.     

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.     

‘She’s White and She’s Hot,So She Can’t Be Guilty’: Female Criminality,Penal Spectatorship,and White Protectionism

Despite mainstream criminology’s burgeoning interest in issues of race, class, and gender, very little scholarship has examined whiteness and its attendant privileges in understanding public discourse on criminal offenders. This paper examines the role of penal spectatorship as a discursive mechanism by which white, female offenders are protected in public spaces by virtue of their racial and gender identity. Using a content analysis of comments posted on the mug shot images of white women on a popular ‘mug shot website,’ we find that these women are viewed as victims of circumstance deserving of empathy and redemption rather than as criminals. We offer ‘white protectionism’ as a means by which whites extend privilege and protection to other whites who transverse the boundaries of whiteness through criminality to guard against ‘deviant’ or ‘criminal’ designations. These findings add to our understandings of penal spectatorship as yet another tool of white supremacy operating in the Post-Civil Rights era of mass incarceration.     

The development,function and future of home furlough programs

Home furloughs are widely recognized as serving valid correctional aims. This was not always the case: when temporary release programs were first established, prevailing penal philosophy emphasized isolation from the community and institutional efforts to achieve inmate reform. It was not until penologists began to address the offender’s post-release adjustment difficulties that temporary release came to be viewed as a valuable aid to offender rehabilitation. Today, the graduation of release that home furloughs can provide make temporary release programs a routine and valuable aspect of correctional programming. Home furloughs can serve a variety of correctional objectives in addition to their principal function of facilitating inmate readjustment to the community. Temporary respites from confinement may humanize the prison experience and promote therapeutic goals. Home visits may act as incentives for good inmate behavior and may serve broader aims than those addressed by more narrowly focused conjugal visiting programs. Finally, observations of the offender’s performance on furlough may assist parole officials in evaluating an offender’s readiness for release. Although the future of temporary release programs is unclear, it appears that the multitude of functions served by home visits will insure their place in correctional programming. However new influences on correctional managers, such as the reforms proposed in the “justice model for corrections,” will undoubtedly modify the administration of temporary release programs and may well lead to some unanticipated consequences for the correctional community.     

What’s Wrong with Penal Populism? Politics,the Public,and Criminological Expertise

This article discusses “penal populism” and its conflict with criminological expertise. It considers the proper balance between professional expertise and community sentiment in the formulation of crime control and penal policy—especially in respect of policy measures where moral rather than instrumental considerations are involved. It raises theoretical questions about the nature of “public opinion”—does it exist other than as an artifact of survey instruments?—and its proper role in a democratic polity. And it considers the professional responsibility of criminological experts in relation to policy formation and political debate. The performance of public health experts during the COVID pandemic is presented as an instructive case in point. Can criminology establish itself as a credible form of social scientific knowledge worthy of public trust? And how should criminologists comport themselves when engaging with questions of public policy and political controversy?

     

Engendering Imprisonment: The State and Incarcerated Female Subjects in Taiwan

In International feminist perspectives in criminology, Rafter and Heidensohn in International feminist perspectives in criminology: Engendering a discipline. Open University Press, Buckingham, (1995: 4) contended that current mainstream criminology was the most masculine of all social sciences. A look at arguments about penal development confronts us with the fact that most historical studies are not gender-specific. Whether female offenders were victimized or acted as their own agents in the penal institutions can be determined with reference to two considerations: first, women prisoners have persistently been treated differently from their male contemporaries; second, female offenders have typically been burdened with formal penalties and informal gender disciplines as punishments for their wrongdoings. The relationship between women and the state provides some clues regarding how penal institutions, which are authorized to act for the state in imposing penalties, treat female offenders and why women’s imprisonment has taken the forms that are evident historically. This study traces the unique political and social conditions of Taiwan’s history to determine what reformations penal institutions have sought to enforce upon female prisoners and which body-types of female inmates have been ‘docile’, ‘obedient’, and ‘useful’ to the state. From the establishment of women’s care homes and the practice of separating the genders in penal institutions, to the implementation of independent women’s prisons, the state in Taiwan has played a dominant role in penal reforms in various historical contexts. This investigation aims to provide a critical and unique perspective of the penalization of women.     

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.     

CRACKS IN THE PENAL HARM MOVEMENT: EVIDENCE FROM THE FIELD*

Research Summary For more than three decades, the penal harm movement, which involves “get tough” ideology and policies, has held sway over U.S. corrections. Scholars have justifiably detailed and decried this movement, but in so doing, they have also inadvertently contributed to the view that a punitive worldview is hegemonic. In contrast, we detail four major “cracks” in the penal harm movement's dominance: the persistence of rehabilitative public attitudes, the emergence of second thoughts about the wisdom of harsh sanctions, the implementation of progressive programs, and the increasing legitimacy of the principles of effective intervention for guiding correctional practices. Policy Implications Taken together, these “cracks” comprise evidence that ideological space and political will exist to fight the penal harm movement and to map out a more efficacious and progressive response to crime. Because of the persistence of social welfare sentiments and growing challenges to the legitimacy of “get tough” policies, the potential to continue, if not expand, this countermovement is present. Taking advantage of this opportunity, however, will require forfeiting the belief that there is no escape from a punitive future and undertaking systematic efforts to devise correctional strategies that are based on solid science, improve offenders' lives, and protect public safety.     

The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth‐Century London

What were the consequences of penal transportation to the New World for eighteenth‐century British criminal justice? Transportation has been described by scholars as either a replacement of the death penalty responsible for its decline, or a penal innovation responsible for punishing a multitude of people more severely than they would have been punished before. Using data from the Old Bailey Sessions Papers and the Parliamentary Papers, this study examines sentencing and execution trends in eighteenth‐century London. It takes advantage of the natural experiment provided by the passage of the 1718 Transportation Act that made transportation available as a penal sentence, thus enabling one to assess the “effect” of transportation on penal trends. This study finds that the primary consequence of the adoption of transportation was to make the criminal justice net more dense by subjecting people to a more intense punishment. While it was also associated with a small decline in capital sentences for some types of offenders, the adoption of transportation was also associated with an increase in the rate at which condemned inmates were executed. The study closes with a discussion of the conditions that may lead to law's unintended consequences, including the mesh‐thinning consequences observed here.     

Courtship Violence Among College Students: A Comparison of Verbally and Physically Abusive Couples

This study used a modified version of the Conflict Tactic Scale (Straus, 1990) to measure the expression of verbal and physical aggression among 572 college students (395 females and 177 males) involved in dating relationships over the previous year. Results indicated that 82% (n = 465) of the total sample reported having engaged in verbally aggressive behavior with a dating partner over the past year, whereas 21% (n = 116) admitted to acting in a physically aggressive manner over the same interval. No significant gender-based difference was found for verbal aggression scores; however, females were significantly more likely to report using physical force than were male students. Male and female students who used verbal aggression were characteristically similar to each. Both had experienced aggression from a parent as children and had drunk alcohol within 3 hours (before or after) an argument with a dating partner. Male and female students who admitted using physical force were dissimilar except that both had experienced parent-child aggression. For male students, having witnessed conjugal violence and their general drinking patterns were also significantly related to their using physical force, whereas for females, the use of physical force was associated with drinking alcohol within 3 hours of an argument with a dating partner.     

A rejoinder to Vaughn and Smith's “Practicing penal harm medicine in the United States: Prisoners' voices from jail”

Correctional health care has improved tremendously over the past 25 years. This rejoinder is a response to an article published in Justice Quarterly by Michael Vaughn and Linda Smith, in which they assert that the quality of correctional health care is suspect in correctional settings, and that an examination of one jail's problems with health care delivery revealed a “penal harm medicine” movement. We call into question such an assertion, claim that the penal harm medicine hypothesis cannot be proven by the data presented by Vaughn and Smith, and state that many of their conclusions are tenuous and harmful to correctional health professionals. We offer an analysis of their claims and suggest a more balanced view of correctional health care.     

Maneuvering with Crime. An Empirical Reconstruction of “Populist” Stances on Youth Crime in German Parliamentary Debates

Recent years have seen a wide discussion of populism in penal policy, which is internationally regarded as a strong drive for establishing punitive tendencies. Generally, “penal populism” is characterized by an extensive consensus across the most influential political parties, a punitive orientation, and the dismissal of scientific or professional expertise. Recent penal policy therefore appears to be a relatively unified practice strongly oriented toward punitive measures that primarily address the public and its perceived need for protection. Because analyses of Anglophone countries are predominant in this discussion, we contrast them with a reconstruction of debates on youth crime in German parliaments from 1970 to 2012. They exhibit a wide variety of populist articulations. Although they imply a strong punitive bias, they also encompass a very heterogeneous rhetoric of penal policy. In conclusion, we argue that penal populism can (and should) be described as a tactical practice, i.e., as political maneuvering employed to negotiate the prospects of punitive and other styles of politics.     

Conjugal Violence in Korean American Families: A Residue of the Cultural Tradition

The study explored the incidence of spouse abuse in Korean American families and interrelations between conjugal violence, marital power structure, stress, and socioeconomic and cultural factors. Rate of conjugal violence in these families is higher than those for other Asian American families. Data were collected from 256 families selected at random. In male dominant couples, rate of severe violence, wife beating, was four times higher than that of egalitarian couples. Husbands who experienced higher levels of stress had a greater rate of assaulting their wives. Wives in egalitarian and female dominant couples experienced a lower amount of stress and shared more decision-making power than did those in the male dominant couples. The longer the couples had been in the United States and the more American education they had received, the more egalitarian and female-dominant marital relations they tended to have. The residual influence of the traditional culture, in which they lived prior to immigration, is a factor suggesting why men were more abusive than women. Cultural differences associated with conjugal violence and needs for services are discussed.     

Mortality under and after sentence of male convicts transported to Van Diemen's Land (Tasmania), 1840–1852

This article reports on mortality in a cohort of 7084 English, Irish and Scottish-born convict men who were transported on 30 ships to Tasmania between 1840 and 1852. To the authors' knowledge, this is the first study of convict mortality that systematically traces the mortality of convicts after emancipation as well as under sentence. This pilot study investigates the relationship between pre-transportation characteristics, convict discipline, reactions to convict discipline, and mortality under and after sentence of the male convict population. The convict men were various in their origins but shared the experience of penal servitude under the gaze of a paper panopticon. Controlling for other factors, the authors find that the convicts were more likely to die under sentence if they were born in Scotland, London or an industrial-urban area; if they exhibited disturbed mental behaviour under sentence, such as tearing their clothes; or if they had more time in solitary confinement or more accumulated insults of their mind and body. For those who survived sentence, mortality was higher for those born in an industrial-urban area, those who had more alcohol-related offences under sentence, those with more time in solitary confinement under sentence, and those who were violent or threatened violence while under sentence.     

Punitive Restoration and Restorative Justice

Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles, not least their relatively limited applicability, flexibility, and public support. Punitive restoration is a new and distinctive idea about restorative justice modeled on an important principle of stakeholding, which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence, demonstrating how restorative practices can be embedded deeper within the criminal justice system.     

Gran Torino

Given the current constellation of fiscal, moral, and logistical problems facing its corrections industry, the USA is on the cusp of a widespread penal reform movement. For the past 200-plus years, each US penal reform that intended to diminish penal practices resulted in widening the reach and deepening the roots of the nation’s punishment system. The question asked here is: is the restorative justice movement in the USA headed the way of past benevolent penal reforms? A new type of social movement: the regressive social movement model is presented. Three past benevolent penal reforms – the penitentiary, the adult reformatory movement, and parole are dissected in order to formulate a regressive reform profile and tested against the restorative justice movement. Field research finds that a repeat performance of regressive reform is in progress. In each of the eight restorative justice movement, variables demonstrate characteristics evident in past benevolent penal campaigns, resulting in a redirection of the campaign’s course.