Kathryn L. Schwaeble and Jody Sundt
The United States is unique in its reliance on incarceration. In 2018 the United States had the largest prison population in the world—more than 2.1 million people—and incarcerated 655 per 100,000 residents, the highest incarceration rate in the world. The U.S. public also holds more punitive attitudes in comparison to citizens of other Western, developed countries. For example, when presented with the same description about a hypothetical criminal event, Americans consistently prefer longer sentences compared to residents of other countries. Attitudes about the death penalty are also instructive. Although international support for the death penalty has declined dramatically over time, the majority of Americans are still in favor of capital punishment for certain crimes. In comparison, Great Britain abolished the death penalty in 1965, and only 45% of its citizens continue to support capital punishment. This raises an important question: Can understanding the will of the public help explain how governments respond to crime?
The answer to this question is more complicated than expected upon first consideration. The United States generally starts from a more punitive stance than other countries, in part because it experiences more violent crime but also because Americans hold different moral and cultural views about crime and punishment. U.S. public officials, including lawmakers, judges, and prosecutors, are responsive to trends in public attitudes. When the public mood became more punitive during the 1990s, for example, U.S. states universally increased the length of prison sentences and expanded the number of behaviors punishable by incarceration. Similarly, the public mood moderated in the United States toward the end of the 2000s, and states began reducing their prison populations and supporting sentencing reform. It is also true, however, that public officials overestimate how punitive the public is while citizens underestimate how harsh the justice system is. Moreover, the public supports alternatives to tough sentences including prevention, treatment, and alternatives to incarceration, particularly for juveniles and nonviolent offenders. Thus public opinion about punishment is multifaceted and complex, necessitating the exploration of many factors to understand it.
Looking at public attitudes about punishment over time, across culture and societies, and in a variety of ways can help explain why social responses to crime change and why some people or groups of people are more punitive than others. Two ideas are helpful in organizing motivations for punishment. First, public support for punishment may be motivated by rational, instrumental interests about how best to protect public safety. Public concern about crime is a particularly important influence on trends in the public mood, but fear of crime and victimization are inconsistently related to how individuals feel about punishment. Second, attitudes about punishment are tied to expressive desires. Attitudes are influenced by culture and moral beliefs about how to respond to harm and violations of the law. Thus attitudes about punishment are relevant in understanding how the public thinks about the problem of crime, as how people think and feel about crime influences what they think and feel should be done about it.
Disciplinary segregation is a punishment that prison officials impose in response to inmate violations of prison rules such as assaulting another inmate or disrespecting an officer. Disciplinary segregation is distinct from other types of restrictive housing (e.g., supermax confinement, administrative segregation), but it is the most commonly used form of restrictive housing in most states. Inmates housed in disciplinary segregation typically spend 23 hours a day in a cell, with limited interaction with other inmates or prison staff. Inmates’ access to other privileges such as recreation, programming, and visitation is also restricted during their time in disciplinary segregation.
Prison officials have the discretion to place inmates found guilty of violations of the inmate rules of conduct in disciplinary segregation, and indeed, segregation is a common response to rule violations. It is expected that confinement in disciplinary segregation will deter inmates’ subsequent rule breaking, but some scholars argue that confinement in disciplinary segregation amplifies inmates’ misbehavior via labeling or by stimulating mental health problems that ultimately result in problem behaviors (e.g., rule violations). Despite these assertions, there is little evidence regarding the impact of disciplinary segregation on inmates’ behavior or mental health. Precise estimates of the extent of the inmate population exposed to disciplinary segregation (and their level of exposure), and studies of the factors that influence prison officials’ decision to place inmates in disciplinary segregation are also limited. The frequency with which disciplinary segregation is used, its greater cost compared to general population confinement, and calls for the equitable and effective use of restrictive housing in prisons by civil rights advocates, the U.S. Congress, and former President Obama underscore the need for further research on the topic.
Margaret Colgate Love
Executive clemency has a rich history in the United States, both as an agent of justice and as a tool of politics. A presidential power to pardon was included in Article II of the Constitution, and all but one of the state constitutions provides for a clemency mechanism. States have established a variety of ways to manage and sometimes limit a governor’s exercise of the constitutional pardoning power, but the president’s power has remained unlimited by law. Until quite recently, clemency played a fully operational part in both federal and state justice systems, and the pardoning power was used regularly and generously to temper the harsh results of a criminal prosecution. Presidents also used their power to calm and unify the country after a period of strife, and to further policy goals when legislative solutions fell short.
But in modern times unruly clemency’s justice-enhancing role has been severely diminished, initially because reforms in the legal system made it less necessary, but later because of theoretical and practical objections to its regular use. A reluctance on the part of elected officials to take political risks, as well as clemency-related controversies, have further eroded clemency’s legitimacy. As a result, in most U.S. jurisdictions clemency now plays a limited role, and the public regards its exercise with suspicion. There are only about a dozen states in which clemency operates as an integral part of the justice system, in large part because its exercise is protected from political pressures by constitutional design. At the same time, the need for an effective clemency mechanism has never been greater, particularly in the federal system, because of lengthy mandatory prison sentences and the lifelong collateral civil consequences of conviction. It appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.
Life without parole sentencing refers to laws, policies, and practices concerning lifetime prison sentences that also preclude release by parole. While sentences to imprisonment for life without the possibility of parole have existed for more than a century in the United States, over the past four decades the penalty has emerged as a prominent element of U.S. punishment, routinely put to use by penal professionals and featured regularly in public discourse. As use of the death penalty diminishes in the United States, life without parole serves as the ultimate punishment in more and more U.S. jurisdictions. The scope with which states apply life without parole varies, however, and some states have authorized the punishment even for nonviolent offenses. More than a punishment serving purposes of retribution, crime control, and public safety, and beyond the symbolic functions of life without parole sentencing in U.S. culture and politics, life without parole is a lived experience for more than 50,000 prisoners in the United States. Life without parole’s increasing significance in the United States points to the need for further research on the subject—including studies that directly focus on how race and racial prejudice factor in life without parole sentencing, studies that investigate the proximate causes of life without parole sentences at the state and local level, and studies that examine the similarities and differences between life without parole, the death penalty, and de facto forms of imprisonment until death.
James M. Binnall and Maryanne Alderson
Reentry is the process of ending a period of incarceration, leaving jail or prison, and returning to society. Not to be confused with reintegration or recidivism, reentry is not a measure of success or failure. Instead, reentry is a journey, and no two reentries are analogous. The reentry process is individualized and highly dependent on a number of factors including a reentering individual’s sentence structure, incarceration experience, and postrelease resources. Depending on these factors, a reentering individual may find his or her return to the free world a relatively smooth transition or a task riddled with seemingly insurmountable obstacles. To navigate such obstacles, most reentering individuals need assistance. Traditionally, reentry assistance was provided by the state, through correctional programming in prison or by parole authorities tasked with monitoring a reentering individual postrelease. In recent years, nonprofit and faith-based organizations have increasingly been a part of innovative reentry initiatives. There has also been a recent expansion of Internet-based reentry resources, such as reentry.net and exoffenders.net, which allow those experiencing reentry to obtain reentry resources online.
Reentry initiatives typically take two forms: deficit-based and strengths-based. Deficit-based reentry models use actuarial assessments to identify a reentering individual’s criminogenic risks and needs. In theory, deficit-based models then address those risks and needs through measured, tailored responses. Critics of deficit-based models argue that by focusing only on risks and needs, such approaches overlook reentering individuals’ talents and skills. Acknowledging these criticisms, many reentry initiatives have shifted away from the traditional deficits-centered model of reentry and toward a strengths-based approach. Rather than focusing on the risks and needs of a reentering individual, strengths-based approaches highlight the attributes of reentering individuals and draw on the experiences of former offenders who have successfully navigated their own reentry and best understand the pitfalls of the process. Recent, albeit limited empirical and experiential evidence supports the strength-based approach to reentry, suggesting that the concerns and insights of those who have been directly impacted by the criminal justice system make the transition from incarceration to freedom a smoother one.