The New Criminal Justice Thinking

Sharon Dolovich, Alexandra Natapoff

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479818358
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

A vital collection for reforming criminal justice. After five decades of punitive expansion, the entire U.S. criminal justice system— mass incarceration, the War on Drugs, police practices, the treatment of juveniles and the mentally ill, glaring racial disparity, the death penalty and more — faces challenging questions. What exactly is criminal justice? How much of it is a system of law and how much is a collection of situational social practices? What roles do the Constitution and the Supreme Court play? How do race and gender shape outcomes? How does change happen, and what changes or adaptations should be pursued? The New Criminal Justice Thinking addresses the challenges of this historic moment by asking essential theoretical and practical questions about how the criminal system operates. In this thorough and thoughtful volume, scholars from across the disciplines of legal theory, sociology, criminology, Critical Race Theory, and organizational theory offer crucial insights into how the criminal system works in both theory and practice. By engaging both classic issues and new understandings, this volume offers a comprehensive framework for thinking about the modern justice system. For those interested in criminal law and justice, The New Criminal Justice Thinking offers a profound discussion of the complexities of our deeply flawed criminal justice system, complexities that neither legal theory nor social science can answer alone.

Part I

Systemic Perspectives

How should we conceptualize the criminal system as a whole? The traditional response—that it is first and foremost a system of rules—is a famously impoverished answer, not least because it fails to account for some of the system’s most powerful dynamics and doesn’t begin to explain its wildly variable outcomes. In these essays, the authors offer richer, broader frameworks, with insights borrowed from administrative law, political theory, legal realism, critical race theory, criminology, and various other disciplines.

Rachel Barkow, The Criminal Regulatory State

Daniel Richman, Disaggregating the Criminal Regulatory State: A Comment on Rachel Barkow’s “The Criminal Regulatory State”

Stephanos Bibas, Improve, Dynamite, or Dissolve the Criminal Regulatory State?

Alexandra Natapoff, The Penal Pyramid

Meda Chesney-Lind, Linking Criminal Theory and Social Practice: A Response to Natapoff

1

The Criminal Regulatory State

Rachel Barkow

When people describe the criminal justice system in the United States today, the topic often turns to mass incarceration. We now have more than 2.2 million people in prisons or jails, and nearly 7 million people under criminal justice supervision.1 With 716 out of every 100,000 people incarcerated, our incarceration rate leads the world.2

Given its glaring dimensions, it is no wonder so many scholars have sought to make sense of how we arrived at this point. Commentators have pointed to broad cultural and political dynamics to explain the punitive turn in America.3 In this essay, I have a more modest goal. I want to explain a mechanism that has helped translate these larger political and cultural dynamics into the expansive system we have today: the regulatory nature of American criminal law. Only by seeing the criminal justice system as a regulatory system can one fully appreciate how the system has expanded in the manner it has. Authors have persuasively pointed to political and cultural responses to the violence and unrest of the 1960s and 1970s to explain the turn to punitiveness. But to understand why the system did not contract—and in fact expanded—even as crime rates fell and its impact disproportionately fell on poor communities of color, one cannot ignore the bureaucracies created in that initial response to violence. The government created agencies and actors who have a vested stake in resisting any efforts to contract the system and who seek to maintain the rules that make those bureaucracies run most efficiently. The criminal regulatory state is thus a critical and necessary link to understanding mass incarceration in America.

To begin, in addition to thinking of mass incarceration as an undifferentiated mass, it is important to keep in mind the ways in which its subpopulations may matter. One stark feature of this system is its disproportionate impact on people of color.4 African Americans make up almost half of the people incarcerated, nearing one million people.5 African-Americans and Hispanics combined make up 58% of the prison population, even though they are only 25% of the U.S. population.6 Between 6.6% and 7.5% of all black males ages 25 to 39 were imprisoned in 2011.7 More than 20% of black men born since the late 1960s have been incarcerated for at least a year, and typically two, for a felony conviction.8 In some cities, more than 40% of black men are under the supervision of the criminal justice system.9 If current trends continue, almost one-third of black men can expect to be incarcerated during their lifetimes, while only 6% of white men face the same expectation.10 Race, then, is a critical part of the story of American criminal justice, as even a modest understanding of American history makes plain.11

In addition to understanding its racial dimensions, it is also important to pay attention to the different types of crimes that the system covers. A large proportion of individuals serving time are doing so for serious crimes. It is, of course, difficult to define with precision what constitutes a serious crime, and reasonable people can disagree about what would qualify. But there is no denying that a large portion of offenders are there for the kinds of crimes that take the greatest toll on victims and society. Of those serving time in state prison, 53% are there for violent offenses.12 And, indeed, it was the rise in violence in the 1960s, continuing into the 1970s and 1980s, that provides the most natural explanation for the uptick in incarceration from the 1970s until the early 1990s, precipitating what I will refer to as the first wave of mass incarceration.13 In understanding the mass incarceration of this period, a logical starting point would be to question the reasons for the rising crime rates to which it responded. That is not to say whether or not the response was commensurate or proportionate, or whether lesser sentences for these offenders could be just as effective from a deterrence perspective.14 But the general contours of the story during this period and with this population are not particularly puzzling. In the face of widespread violence and serious thefts, it is easy to see why a society would respond by seeking incapacitation of the individuals who commit such crimes. Studies have shown that incarceration during this period decreased crime, even if there is disagreement on the extent.15 And even if lesser sentences could achieve the same deterrence at a lesser cost, one can understand why the public might still demand longer sentences as a matter of retributive justice for these serious crimes.

A more comprehensive story has to account for the other large group of offenders in the system. Most of the remaining offenders serving time are doing so for low-level crimes, including drug crimes. Many of these individuals came into the system during what I will call the second wave of mass incarceration that started in the mid-1990s and continues to the present day. The rate of incarceration ballooned in this period, even with declining crime rates,16 and it had continued largely unabated until the recent budget crisis signaled what could be the modest start of a shift. Studies of this second wave show no statistically significant relationship between the growth of the prison population and the reduction in violent crime.17 In fact, they show diminishing returns as incarceration increases.18 As one study puts it, “beyond a certain point, [prison expansion] will no longer serve any reasonable purpose. It seems that that point has been reached.”19

Joanna Shepherd, analyzing prison population growth studies from before and after the mid-1990s concludes that the reason this second wave may not yield crime-fighting benefits is because the increase was largely driven by offenders committing drug offenses and other low-level crimes.20 She notes that for this group in particular, the crime-increasing effects of incarceration might outweigh the crime-decreasing ones. The longer people are incarcerated, the greater the difficulty they will have in maintaining family ties and obtaining employment upon release, and thus the greater the risk they will reoffend.21 In addition, longer prison stays have detrimental effects on communities by disrupting family structures and removing a large proportion of adult males, a dynamic that has been shown to lead children in those communities to commit disproportionately more crimes.22 The net effect is that, for low-risk offenders, shorter terms of incarceration reduce crime more than longer terms, and sentences with no prison time are more effective at reducing crime than sentences of incarceration.23

This second wave thus presents one of the biggest puzzles of American mass incarceration: why the carceral state has continued to grow to include more offenders committing drug and nonviolent crimes, even when studies show that it is counterproductive at fighting crime, imposes enormous fiscal and social costs, is particularly concentrated on poor communities of color, and does not serve the same retributive ends.

It is this aspect of American criminal justice that motivates this essay. I do not claim here to have an overarching theory that trumps or displaces any other. Nor do I want to suggest that the dynamic I will describe applies in all contexts or all places. Instead, I have a more modest goal. I want to add to our existing understanding by highlighting one feature of criminal justice that both eased its expansion from the first wave to the second wave and made that expansion appear routine: its function and operation as a regulatory system.24

The criminal justice system...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction: Mapping the New Criminal Justice Thinking
• Part I. Systemic Perspectives
• Part II. Legal Doctrine in Principle and Practice
• Part III. Getting Situated: Actors, Institutions, and Ideology
• Part IV. Humanizing the Question
• Part V. The New (Old) Criminal Justice Thinking
• About the Contributors
• Index