Bifurcation nation: American penal policy in late mass incarceration

Abstract

The question has been posed whether current developments in American penal policy toward reducing prison populations and sentences for low level, nonviolent offenses might reflect the end of the mass incarceration era. Yet articulation of precisely what defines the present in American penal policy remains unclear. This paper identifies three distinctive features: a national-level program of comprehensive criminal justice reevaluation and reform in response to the excesses of recent policy; the distinguishing of groups for distinct treatments as a central principle and product of the reform program; and the fusion of previously distinct political and administrative logics that undergird the reform process. Rather than a full turn away from mass incarceration or an ambivalent mix of old and new, contemporary penal policy is better characterized as a bifurcation, responding uniquely, with new answers and new omissions, to the dilemmas and constraints of “late mass incarceration.”

The Politics, Promise, and Peril of Criminal Justice Reform in the Context of Mass Incarceration

“…This hypothesis is consistent with the argument that penal change rarely represents a sudden rejection and replacement of past practices and policies (Goodman et al 2014, Campbell & Schoenfeld 2013. It is also bolstered by evidence that states have continued to expand life-without-parole (LWOP) statutes even as they enacted decarcerative reforms pertaining to drug and other nonviolent offenses (Seeds 2016).…”

“…In their analysis of media rhetoric and legislative reforms enacted from 2000 through 2012, Beckett et al (2016) found that reforms pertaining to nonviolent offenses were often legitimated in terms of the need to ensure that sufficient resources are available to incarcerate people convicted of violent crimes for even longer periods of time. It thus appears quite possible that late mass incarceration (Seeds 2016) will be characterized by shorter sentences or diversion for a handful of less-serious crimes such as drug possession and theft but even longer sentences for violent and sex offenses (and possibly drug dealing). Given that sentences imposed in the United States for all types of crime are already substantially longer than those imposed in comparable countries (Tonry 2016) and that one in seven prisoners is currently serving a life sentence (Nellis 2017), this possibility is quite sobering.…”

“…And although the rhetoric of the drug war may amplify punitive tendencies, it remains the case that a relatively small proportion of people living behind bars are there as a result of a drug conviction. This is important because recent studies suggest that mainstream advocates of reform tend to limit their attention to people convicted of nonviolent crimes (Beckett et al 2016, Seeds 2016 or to "non, non, nons," nonserious, nonrepeat, and nonviolent offenders (Gottschalk 2015). Moreover, although pragmatic considerations undoubtedly underlie this strategy, this approach appears to be producing a new way of thinking and talking about crime, one that is premised on the idea that only relatively sympathetic defendants facing less-serious charges are deserving of reform (Beckett et al 2016).…”

“…Moreover, although pragmatic considerations undoubtedly underlie this strategy, this approach appears to be producing a new way of thinking and talking about crime, one that is premised on the idea that only relatively sympathetic defendants facing less-serious charges are deserving of reform (Beckett et al 2016). Indeed, according to Seeds (2016), the logic of bifurcation, which holds that the response to nonviolent crime should be fundamentally different from the response to violent crime, has become the guiding principle of the mainstream reform movement led by bipartisan elites and technocratic reformers. This hypothesis is consistent with the argument that penal change rarely represents a sudden rejection and replacement of past practices and policies (Goodman et al 2014, Campbell & Schoenfeld 2013.…”

“…More-optimistic accounts emphasize the significance of the recent mobilization of conservative reform advocates (Dagan & Teles 2014Green 2015;Travis 2014) and the political opportunities afforded by heightened fiscal concerns in the post-Recession period (Aviram 2015; see also Phelps 2016, Phelps & Pager 2016. By contrast, more-pessimistic accounts foreground the problem of path dependence, especially the power of institutions with a vested interest in mass incarceration (Gottschalk 2015;Page 2011a,b;Thorpe 2015), the ongoing invocation of the need to get even tougher on people convicted of comparatively serious crimes (Beckett et al 2016, Gottschalk 2015, Seeds 2016) and the challenge of harnessing the discretion of the criminal justice actors whose everyday practices notably impact penal outcomes (Cadora 2014). …”