Criminal Justice Reform

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

Introduction

Recent decline of incarceration rates in the U.S. has sparked discussions about the future of mass incarceration.
Some believe the "tough on crime" consensus has been replaced by a desire to downsize prison populations.
The article analyzes criminal justice policy reform trends from 2000-2013 and media coverage since 2008.
The study aims to determine if there's a true paradigm shift or a more complex modification in how punishment is conceived and enacted.
The article posits that public discourse and legislation may be characterized by complexity and contradiction rather than a comprehensive rejection of mass incarceration.

The Argument for Comprehensive Rejection of Mass Incarceration

Incarceration rate peaked in 2007 and fell by 9% by 2013.
Some observers suggest a comprehensive reappraisal of policies that fueled mass incarceration is underway.
Falling crime rates and conservatives critically examining the prison system are cited as reasons for the shift.
Petersilia and Cullen argue the old way of thinking about crime and punishment has been "shattered", with widespread support for downsizing.

Complexity and Contradiction in Contemporary Discourse

The article explores whether the ideas, assumptions, and policies buttressing mass incarceration persist.
It considers if the reform process itself may legitimize and solidify practices fueling mass incarceration.
Analysis of state corrections and sentencing legislation (2000-2013) and newspaper stories/editorials (since 2008) will be used.
The study suggests contemporary discourse and reform strategies are characterized by contradiction.
The reform process may reinforce assumptions, rhetoric, and images that support mass incarceration.

The Argument for Comprehensive Rejection of Mass Incarceration (Continued)

Growing acknowledgment that prison populations are too large in public and political arenas.
Media reports are highlighting efforts to reduce prison populations, substandard conditions, and negative consequences of "zero tolerance" policies.
The emergence of politically conservative critics of mass incarceration (Right on Crime) marks a significant shift.

Policy-Level Changes

Drug policy reform is widespread, with over half the states adopting significant drug law reforms.
New York State revised Rockefeller drug laws in 2004 and 2009.
Michigan abolished automatic life without parole (LWOP) for selling 650+ grams of cocaine/heroin.
Texas expanded diversion options for drug possessors.
Parole reforms enable inmates to earn "good time" credits or reduce technical parole violators returned to prison.
These reforms have reduced prison admissions in many states.
Admissions to state prisons for drug offenses fell by 24.7% between 2006 and 2011.
Prison admissions from parole revocations dropped by 36.5% between 2007 and 2012.
Federal legislation like the Smarter Sentencing Act of 2014 could reduce federal prison population for drug offenses.

Challenges to Reversing Mass Incarceration

Sociolegal scholarship suggests mass incarceration may be difficult to reverse, even with reforms.
Reforms can trigger adaptation by institutional actors.
Following the Supreme Court’s invalidation of vagrancy and loitering statutes, local authorities created new social control tools.
The Furman v. Georgia decision led to widespread adoption of LWOP sentences.
Prison litigation efforts in Florida led to building additional prisons rather than reducing populations.
Efforts to reduce prison populations through intermediate sanctions in the early 1990s did not reduce prison populations, and in some cases actually increased them.

Institutional Dynamics Undermining Reform

Criminal justice reform may not be linear and can have paradoxical consequences.
Mass incarceration creates vested interests that seek to perpetuate favorable institutional arrangements.
Path dependence: developments generate self-reinforcing processes frustrating change.
Path dependence = tendency \ for \ courses \ of \ political \ or \ social \ development \ to \ 'generate \ self-reinforcing \ processes'
Creation of Sweden’s welfare programs created public sector workers who mobilized around policies sustaining the welfare state.
Institutions flourishing due to mass incarceration often work to ensure its continuation.

Examples of Institutional Resistance

Private prison corporations, prison officers' unions, the bail industry, and county clerks often block progressive criminal justice reform.
Prison officer unions make campaign donations, fund victims groups, and engage in public relations campaigns.
Efforts to blunt or reverse reforms may take subtle and less visible forms.
Legal discretion can create a gap between "law on the books" and "law in action".
Police organizations/officers possess significant discretion shaping criminal justice outcomes and urban landscapes.
Prosecutorial discretion is consequential but difficult to monitor.
Parole boards in indeterminate sentencing systems heavily impact time served.

Cultural Obstacles to Reform

Criminal justice reformers are likely to encounter cultural obstacles.
Mass incarceration is a highly racialized phenomenon, reflecting and perpetuating racial stereotypes.
Rhetorical justifications for crime and drug wars rely on racialized images and discourses.
Criminal justice institutions serve as "race-making" institutions.
Political actors opposed to reforms may use racially inflected images and discourses.
White citizens may become more supportive of "tough" policies when informed they disproportionately impact people of color.
Penal practices are inherently expressive and symbolic acts, with emotionally and morally loaded discussions.
Discussions of crime and punishment are intensely symbolic phenomena.

The Role of Symbolic Politics

Policy-makers may feel compelled to reassert moral boundaries and reassure the public that "real criminals" will be punished.
Reformers may juxtapose sympathetic targets (nonviolent drug users) with "serious and violent" criminals.
The I75 campaign in Seattle emphasized that deprioritizing marijuana enforcement would free resources for serious crime.
The U.S. Department of Justice’s "smart on crime" campaign highlights "just punishments" for "non-violent offenders".
National discourse may reflect a bifurcated way of thinking about punishment, distinguishing between nonviolent and violent offenders.

Hypotheses and Expectations

Criminal Justice reforms are not comprehensive, consistently identifying nonviolent, nonserious, and nonrepeat offenders as intended beneficiaries.
Calls for reforms frequently assert the need to maintain or intensify penalties on "serious" and "violent" criminals.
Reforms framed as reducing state expenditures rather than promoting fairness, proportionality, or human rights.
Policy "solutions" aimed at minimizing correctional costs may be seen as sufficient.

Data and Methods

Records of state-level correctional policies enacted between 2000 and 2013 from the National Council of State Legislatures (NCSL) were obtained.
Data from 2000 to 2009 were drawn from NCSL’s annual reports.
Data from 2010 to 2013 were taken from a comprehensive database of corrections- and sentencing-related legislation provided by the NCSL in partnership with the Pew Center on the States.
Legislative provisions that could foreseeably impact correctional populations in a fairly direct way were identified.
Provisions aimed at reducing confinement were coded as progressive; provisions seeking to increase the use of incarceration were coded as punitive.
The unit of analysis was the legislative provision rather than the session law.
The legislative analysis was supplemented with an analysis of newspaper stories and editorials regarding criminal justice reforms since 2008.
The sample included newspaper stories that were retrieved through a ProQuest Newsstand search.
The ProQuest Newsstand database contains articles from a broad range of local, regional, and national publications.
The total sample size was 163 articles from eighty-four newspapers.
The newspaper articles were coded to see Arguments in favor of reform, Criticisms of reform, Intended beneficiaries of reform., Sources cited

Findings: Trends in Criminal Justice Law and Policy

Many states continued to enact “tough” anticrime legislation prior to the onset of the recession (see Figure 1).
Punitive legislative provisions outnumbered progressive provisions by a ratio of 3 to 1.
Much of this legislation was aimed at sex offenders, although many states also continued to target drug and violent offenders during this time period.
Legislators in Ohio and Oklahoma authorized LWOP sentences for certain repeat sex offenders in 2002.
Lawmakers in seven states imposed harsher penalties for the crime of exposing children to methamphetamine production in 2004.
The progressive reforms that were adopted during this period were largely limited to parole (e.g., back-end reforms) and drug policy.
Progressive provisions outstripped punitive ones by about 3 to 1 during and after the recession.
The progressive reforms that were enacted were almost exclusively limited to drug and especially parole policy.
Drug reforms peaked in 2011, when ten states reduced penalties for drug offenses and five expanded drug courts or other diversionary sentencing options for drug offenders.
Parole reforms aimed at reducing the number of technical violators who are readmitted to prison or facilitating the “early” release of inmates peaked in 2009 to 2011.
In 2010, New Hampshire legislators enacted a reform requiring that inmates convicted of nonviolent offenses be released upon serving 120 percent of the minimum term, but repealed this reform in 2013.

Findings: Framing Criminal Justice Reform: 2008 to the Present

Newspaper discussions of crime and punishment reveal a very different sensibility.
Half of all stories focused on corrections, and most of these stories focused on state policy-makers’ efforts to reduce prison populations.
Fiscal concerns are the primary reason for efforts to reign in prison populations.
Mentions of costs other than financial—such as human costs, societal costs, and moral costs—are rare.
Republicans outnumbered Democrats by a ratio of 1.7 to 1.
Conservatives can have a conversation about saving resources at the same time that they fight crime because nobody believes the Democrats are actually going to punish crime.

Arguments for Reform

The most common argument cited concerned the fiscal costs associated with mass incarceration.
The frequency of public safety arguments for reform is also telling, as it suggests that reform advocates are to a large extent borrowing the rhetoric associated with old-fashioned calls for law and order, which both amplified and relied heavily on popular fear of crime (Simon 2007).
Although not entirely absent in popular discussions of criminal justice reform, the human costs associated with mass incarceration are referred to far less frequently. Moreover, our impression is that these concerns were expressed most frequently in stories that provided coverage of Democratic Senator Jim Webb’s hearings regarding national criminal justice issues, which focused significantly on mass incarceration’s collateral conse- quences for families and communities, and in stories that focused on Attorney General Eric Holder’s calls for criminal justice reform, which included otherwise rare references to racial disproportionality in the criminal justice system.

Intended Beneficiaries of Reform

Given the previously documented dearth of legislative enactments, it is unsurprising that even calls for wider-reaching policy changes are largely absent from media coverage of contemporary criminal justice reform.
Conservatives might lead to recognition of the need for comprehensive legislative reforms.
In fact, discussion of more far-reaching reform strategies that would modify punishments for offenses that trigger long prison sentences are exceedingly rare.
Specifically, in the 163 articles analyzed, only two mentions of reform strategies that would benefit those convicted of violent offenses: a reference to repealing LWOP sentences for juveniles and another regarding reform of a state death penalty statute.
By contrast, the vast majority of media stories concerning criminal justice reform focused on policy changes that would benefit drug offenders, nonviolent offenders, and/or nonserious offenders.
reform advocates significantly outnumbered reform opponents as sources.
common rhetoric from previous decades used suggesting reforms undermine public safety.
non-fiscal concerns were found in about a quarter of the critique

Subtle Versions of the Narrative

Subtle versions of this narrative delineate differences between (comparatively) deserving and undeserving criminal offenders.
nonviolent offenders, particularly juveniles, the mentally ill, and those convicted of drug offenses.
Progressive reform measures should be the target of some criminals
The idea that the resources and energies of the criminal justice system, including those resources preserved through progressive criminal justice reforms, should be used to focus on undeserving offenders
Progressive reforms, should be coupled with enhancement of punishments

Discussion and Conclusion

Institutional and political obstacles (Petersilia and Cullen 2015) may prevent reforms to reduce prison and jail populations.
Neither policymakers nor reform advocates appear to be willing to make the case for comprehensive sentencing reform based on a thorough accounting of the human costs of mass incarceration.
Drug policy reform alone will not solve this problem—and ensure that prison cells are reserved for the serious and violent criminals who clearly need to remain in them, perhaps for even longer periods of time.
parole reforms skyrocketed but can not limit any of the damage.
a “punishment imperative” is now being questioned and reviewed
limiting jail for drug offenses also is not enough to improve mass incarceration conditions.

Call to Action for Comprehensive Reforms

Significantly reducing incarceration rates in prisons and jails will necessitate broad sentencing reforms that significantly reduce the number of people flowing into incarcerative institutions, as well as the amount of time people spend in those institutions
Media discussions of criminal justice reform focus overwhelmingly on the need for drug policy reform and link such reforms to fiscal pressures rather than a comprehensive analysis of the human costs associated with mass incarceration.
Reform advocates have undoubtedly chosen to focus on drug law reform and highlight the fiscal cost of incarcerating drug offenders for strategic reasons.
The unwillingness of reform advocates and policy-makers to tackle the comparatively difficult topic of violence is eminently reasonable from a short-term, strategic point of view.
absent a deep and sustained interrogation of the practices and policies that fuel violence in the United States—as well as the violence of punitive responses to it—a true paradigm shift with respect to mass incarceration will continue to elude us.
A more universalist reform strategy that emphasizes the human rights, capacity for maturation, and shared humanity of all subjects of the carceral state—both present and future—may prove more effective in the long run.