The End of an Era? Understanding the Contradictions of Criminal Justice Reform

Abstract

Recent drops in the U.S. rate of incarceration have triggered much discussion regarding the fate of mass incarceration. Some observers suggest that the political consensus in favor of getting tough on crime has been shattered and replaced by a new consensus that the prison population must be downsized. In this article, we explore the possibility that neither legislation nor public discourse around crime and punishment has shifted so dramatically, and that the cultural dynamics surrounding reform efforts may undermine the prospects of comprehensive sentencing reform. To assess these hypotheses, we analyze trends in criminal justice policy reform from 2000 to 2013 and newspaper stories and editorials on criminal justice reform since 2008. While we do find important examples of changing rhetoric and policy, we suggest that these changes do not constitute a “paradigm shift.” Rather, they are indicative of a more subtle, complex, and contradictory modification of the way punishment is conceived, discussed, and ultimately enacted.

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

“…And although legislators from rural communities that house prisons often seek to obstruct proposed criminal justice reforms (Thorpe 2015), many such reforms have been enacted. In fact, since 2008, at least 48 states and the District of Columbia have undertaken some type of progressive criminal justice reform aimed at reducing reliance on incarceration; more than half the 50 US states adopted significant drug law reforms (Beckett et al 2016, Subramanian & Moreno 2014. Until about 2011, such measures were also opposed by ALEC (the American Legislative Exchange Council), which represents about one-third of all state legislators (Green 2015).…”

“…Evidence that powerful private interests with a stake in mass incarceration exist and attempt to influence policy debates is not, therefore, evidence that change is impossible or even unlikely. Penal pessimists might counter that recently enacted reforms tend to be limited to nonserious and nonviolent offenses, and that their potential impact on the scale of incarceration is therefore limited (Beckett et al 2016, Gottschalk 2015, Tonry 2016. Although accurate, this observation does not negate the fact that many recent reforms were enacted over and against the opposition of vested and powerful interest groups.…”

“…Second, to the extent that reforms are intended only to provide short-term financial relief, they will not lead to long-term declines in incarceration or reduced carceral state power. For example, some states created temporary relief valves that enabled correctional authorities to authorize the early release of prisoners in the wake of the Recession but then rescinded those measures as the state economy recovered (Beckett et al 2016). In the absence of a broader critique of mass incarceration, measures oriented toward cost-savings alone are unlikely to yield long-term change (Alexander 2010(Alexander , 2014Gottschalk 2015).…”

“…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).…”

“…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). …”