Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity

Human dignity as a value to guide criminal justice reform emerged strikingly in the 2011 Supreme Court decision in Brown v. Plata. But with Justice Kennedy retired and courts generally reluctant to go far down the road to practical reforms, its future lies in the political realm shaping policy at the local, state, and national levels. For human dignity to be effective politically and in forming policy, we need a vocabulary robust enough to convey a positive vision for the penal state. In this essay, I discuss three concepts that can provide more precision to the potential abstractness of human dignity, two of which the Supreme Court has regularly used in decisions regarding punishment: the idea of a “decent society,” the idea of a “civilized system of justice,” and the idea of a “condition of dignity.” In brief, without a much broader commitment to restoring a decent society, and to civilizing our justice and security systems, there is little hope that our police stations, courts, jails, and prisons will provide a condition of dignity to those unfortunate enough to end up in them.

Punitive by negligence? The myths and reality of penal nationalism in the Czech Republic

Penal populism has repeatedly been described as influencing penal policies, with harsh penal practices presented as evidence of its influence. However, little attention has yet been paid to its role in the development of penal policies in post-authoritarian countries, which generally have large prison populations. Some minimal research has suggested that Central European countries were driven by penal nationalism following the 1989 revolutions. I examine this claim for the Czech Republic, using Garland (2013) 's framework of the five dimensions of a penal state. My analysis of political manifestoes shows that Czech politicians did not employ “law and order” rhetoric. The country's penal reforms were led by lenient penal elites. Nevertheless, a lack of analysis, coordination and sufficient funding resulted in a failure to properly identify or tackle the causes of the country's high imprisonment rate. Even though it gradually became more difficult to impose prison sentences, insufficient attention was paid to the length of the sentences Czech prisoners were serving. The large Czech prison population thus seems to be the result of state actors’ negligence, but not of penal populism nor of penal nationalism.

Market development, state formation, and the historical abolition of the debtors’ prison

In the late 18th century, lenders’ right to imprison borrowers for defaulting on debts was taken for granted. By the mid-19th century, this power was widely and permanently revoked. Using a variety of archival evidence, this study explains the historical demise of the debtors’ prison in New York State, the first Western jurisdiction to permanently abolish imprisonment for debt. Tracing seven decades of contestation over moral aspects of credit exchange and incarceration, it shows that the development of capitalist markets, including their cultural and technological consequences, was necessary but not sufficient to render the debtor's prison obsolete. Rather, the development of a liberal polity and a penal state institutionalized new moral views about the use of force in economic exchange, consolidating the legitimacy of bodily detention around the punishment of crimes rather than the coercion of private agreements. The analysis has implications for theories of states, markets, and violence, as well as for recent trends in penal debt, debt resistance, and prison abolition.

The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond

This article explores the duality of emergency powers and criminal law in old and new formations of empire. Set against the backdrop of the US “war on terror,” I link discussions around current articulations of empire and the treatment of “enemy combatants,” illuminating new connections between empire, emergency, and “enemy penology.” Focusing on Palestine/Israel, I explore the duality created by emergency powers and criminal law from the late British Empire to contemporary Israel/Palestine as an “imperial formation.” Through a genealogy of emergency legislation, military courts, and two case studies from the 1980s Israel, I show how emergency powers constitute a penal regime that complements ordinary criminal law through prosecutions of racialized enemy populations under a distinct exclusionary and punitive legality. Building on Markus Dubber's Dual Penal State, I demonstrate how the—openly illiberal—dual penal empire (i) suppresses political resistance (insurgency, rebellion, and terrorism) and (ii) institutionalizes enemy penology through emergency statutes and military courts. Thus, in imperial formations, such as Israel and the US—which deny their illiberal features—emergency powers are framed as preventive security and denied as part of the penal system, while enemy penology operates in plain sight.

Introduction

The introductory chapter lays out the puzzle surrounding life without the possibility of parole (LWOP). LWOP holds a unique place in the landscape of extreme forms of punishment. It stands at the intersection between the death penalty and long-term imprisonment. While recognized as being particularly cruel since at least Beccaria, relatively few empirical studies have focused on LWOP’S extreme severity. Despite growing awareness and evidence of LWOP’S cruelty, the punishment has become a rather ordinary practice in the American sentencing toolkit. The expansion and proliferation of LWOP in America stands in sharp contrast with the rest of the world where the punishment is deemed reprehensible. LWOP’S growth in the United States is particularly remarkable for the apparent dispassion with which the American public and various penal state actors have embraced and accepted such a practice. Other than prisoners-led organizations, like The Other Death Penalty Project, there are very few strong and vocal activist groups campaigning against the punishment. By contrast, strong and vocal groups have campaigned against prison overcrowding and death sentences. While sharing features with both imprisonment and the death penalty, LWOP’S extreme severity has not triggered similar attention and reaction. Instead, the punishment has even been actively promoted by a number of criminal justice actors including those who traditionally challenge degrading and inhumane treatments. This book investigates how, using the development of LWOP in the Californian death penalty context as an example, extreme forms of imprisonment can become normalized.

“A Program, Not the Projects”: Reentry in the Post-Public Housing Era

Prisoner reentry is widely recognized as a hybrid project of poverty governance situated at the intersection of the welfare state and penal state. Numerous scholars have examined the devolved terrain and organizational dynamics of reentry services. Still others have emphasized the particular challenges and importance of housing to the reentry process. However, few have examined how reentry organizations secure or manage housing for their clients, particularly in an era marked by a widespread housing affordability crisis and the retrenchment of public housing in favor of privatized subsidized housing provision. In this article, we present an ethnographic case study of one particularly illustrative site: “New Beginnings,” a new and novel housing development in Syracuse, NY, codeveloped and comanaged by a prisoner reentry organization and a local housing authority. We show that, despite its ostensible mission to integrate the formerly incarcerated and provide much-needed housing to the poor, the development reproduces the stigma of criminal history, producing a sense of ambivalence among residents, who are both grateful for the quality of their new housing and resentful of ongoing forms of carceral supervision and control. In turn, formerly incarcerated residents uphold their participation in the program as a way to distinguish themselves from traditional public housing tenants, further entrenching dominant narratives about the failures of public housing. These findings reveal the complex interplay between the project of reentry and the provision of subsidized housing in the post-public housing era.

From carceral punitivism to systematic killing: The necropolitics of policing in post-Chávez Venezuela

Since 2017, state security forces in Venezuela have been responsible for over 20% of violent deaths in the country. This represents an unprecedented period of state repression in the country’s history that demands examination. In this article, we argue that in order to understand the recent increase in violent deaths in Venezuela during the post-Chávez period, we must place at the center of our analysis the discourses and practices of an extremely privileged actor, the state, in the context of the collapse of oil prices. We propose that this upsurge of lethal violence can be understood within the historical process of militarization of citizen security. In the first phase, starting in 2009, we see an increase in carceral punitivism—the hyperreaction of the penal state. In the second, a new stage in militarized raids is launched which, over the years, gave way to a practice of systematic extralegal killings that became the fundamental strategy of social control. These raids represent a necropolitical approach to governance in a context of extreme economic and political crisis.

Punitive ambiguity: State-level criminal record data quality in the era of widespread background screening

Prior research documents widespread deficiencies in the quality and completeness of official criminal records in the United States. In an era when the social reach of criminal records has expanded to an unprecedented degree, these deficiencies carry serious consequences for criminal record subjects. The present study develops the concept of punitive ambiguity to characterize the burdens of incomplete criminal records and examines how they vary at the state level, providing evidence that punitive ambiguity is racially patterned. Using data from the biennial Surveys of State Criminal History Information Systems, multivariate analyses find that states where African Americans make up larger shares of felony record populations report rap sheet dispositions at significantly lower levels, pairing low criminal record data quality with extensive legally-mandated background screening. The results carry implications for understanding the racialized burdens of a criminal record, as well as broader processes in the development of the American penal state that combine harsh formal punishments with chronic administrative neglect.

Contemporary Narratives of Mass Incarceration

The rise in rates of imprisonment since the late 1970s is one of the most striking features of social policy. The USA and England and Wales have been the “leaders” in these developments. The rate of imprisonment doubled in the UK in the twenty years to 2015. This chapter will begin with a discussion of the historicity of mass incarceration and the penal state. It will examine the expansion of the use of imprisonment in England and Wales over the past thirty years. In contrast to the previous theoretically orientated chapters, this will focus on data such as the rates of imprisonment and the development of policy within this field. The chapter will also provide a comparative analysis that will place the development of the penal state in England and Wales within an international context.

Welfare and Punishment

The development of welfare and penal policies are inextricably linked and interrelated social and political phenonema. They, therefore need to be analysed in unison. The reduction of the social state and the expansion in the rates of imprisonment are joint strategies by governments. The punitive shifts that led to the increase in prison populations from the late 1970s onwards in England and Wales have had a much broader influence than simply in the area of Criminal Justice. They have helped to entrench views about the nature of marignalised groups or populations. The work will examine the genealogy of the penal state or the various explanations for its development. Penal policy and social provision are used to provide or give the illusion of social stability. Developments in these areas are often a response to a crisis of legitimacy. This work will argue that the late 1970s crisis that led to the advent of neo liberalism led to not only new economic policies but also that these are linked to new social policies which stigmatise marginal groups. The supporters of these policies argued that the retrenchment of the welfare state was necessary because of a state fiscal crisis. The spectacle of punitivism also served to convince voters that social investment was counterproductive as the management of the “underclass” could only be achieved through coercion - in the areas of welfare and penal policy