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.
The death penalty, also referred to as capital punishment, is the process whereby a state government orders a sentence of death for a person found guilty of a particular set of criminal offenses. In the United States, the primary capital crime is first-degree murder with an additional aggravating factor, usually called a “special circumstance” (e.g., murder of a law enforcement officer). Capital punishment is a complex process that includes a criminal charge, an involved legal process, sentencing, special “death row” prison housing, post-conviction appeals, and the ultimate execution of the defendant. Persons sentenced to death are called condemned. Execution refers specifically to the process in which the defendant is killed.
Capital punishment has been practiced throughout human history, with considerable variation across eras and regions. In the last 50 years, the use of capital punishment has declined across the globe, and there are relatively few countries that use it regularly as a form of punishment, most notably China. Some countries have abolished the death penalty completely, such as all member states of the European Union. Most other countries have seen a decline in its use. For instance, only 31 out of 50 states in the United States currently have death penalty statutes (there are also federal death penalty statutes, which are rarely used). The other 19 U.S. states are referred to as “abolitionist.”
The “modern era” of capital punishment in the United States was spurred by two important Supreme Court cases. The Furman v. Georgia (1972) decision ruled that arbitrariness in the application of the death penalty deemed its use unconstitutional. The reversal of that ruling four years later in Gregg v. Georgia (1976) reestablished the death penalty in America, and experts refer to the modern era as 1976 to the present.
In contemporary society, “closure” refers to “end to a traumatic event or an emotional process” (Berns, 2011, pp. 18–19)—and, in the more specific context of capital punishment, controversy over what, if anything, is needed for murder victims’ families to attain healing and finality or move forward with their lives, including the execution of their loved one’s killer. The term is highly politicized, and is used by both death penalty advocates and its opponents to build arguments in favor of their respective positions. Closure has been indelibly linked to both capital punishment and media institutions since the late 1990s and early 2000s. The media’s penchant for covering emotional events and its role in informing the American public and recording newsworthy events make it perfectly suited to construct, publicize, and reinforce capital punishment’s alleged therapeutic consequences. Legal and political officials also reinforce the supposed link between closure and capital punishment, asking jurors to sentence offenders to death or upholding death sentences to provide victims’ families with a chance to heal. Such assertions are also closely related to beliefs that a particular offender is defiant or lacks remorse. Surprisingly, however, the association between closure and capital punishment has only recently been subjected to empirical scrutiny. Researchers have found that victims’ families deem closure a myth and often find executions themselves unsatisfying, provided that a perpetrator does not enjoy high media visibility so that the execution has a silencing effect, as did Oklahoma City bomber Timothy McVeigh’s execution by lethal injection in 2001. Recent empirical examinations of the link between capital punishment and closure prompt a redefinition of closure through which victims’ family members learn to cope with, work through, and tell the story of a murder and its impact. This redefinition is less sensational and thus perhaps less newsworthy, which may have the salubrious effect of discouraging extensive media emphasis on executions’ closure potential. Another way to decouple closure from capital punishment is for media organizations to change their practices of covering perpetrators, such as by not continually showing images of the perpetrator and by incorporating a more extensive focus on the victims and their families. While government officials have called for the media to exercise restraint in the wake of such events as the Oklahoma City bombing and 9/11, victims’ groups are now beginning to advocate for this same goal, with much success.
Alec C. Ewald
Collateral sanctions are legal restrictions on the rights and privileges of people who have experienced contact with the criminal justice system, particularly contact resulting in conviction. Usually placed in civil and regulatory codes, collateral sanctions may limit a person’s ability to vote, live in public housing, own a firearm, qualify for an occupational license, serve in the military, receive public benefits, sit on a jury, or borrow money for college, among other activities. Yet, because they are usually defined as “indirect” consequences of a conviction, they may never surface in the criminal justice process, and they frequently extend far beyond the sentence.
Such restrictions can deeply compromise the civic status and life chances of Americans with conviction records. But they are far from uniform: some serious restrictions are triggered by criminal justice involvement well short of a conviction, while others mark only some classes of offenders or operate only in some states. Layered into the federal system, multiplying the complications of criminal law and regulatory law, and imposed by civil servants with wide leeway in their interpretation of rules, American collateral sanctions are varied and complex. Their reach and severity in the United States appear to be unique in the democratic world and mark an important respect in which the American carceral state extends beyond mass incarceration.
Sarah Tahamont and Nicole E. Frisch
Correctional classification is at the core of the prison experience. Classification processes determine what, with whom, and how an inmate will spend his or her time while incarcerated. Classification designation influences virtually all dimensions of prison life, including the structure of inmate routines, ability to move about the facility premises, program eligibility, mandatory treatments, and housing location or style. Yet it is very challenging to speak about correctional classification in general terms, because there are 51 different classification schemes in the United States, one for each of the 50 states and the federal prison system. Correctional classification can be centralized or decentralized to varying degrees across institution, facility, and unit levels of prisons. Although often used interchangeably in correctional argot, the two predominant correctional classification types are security (referring to the characteristics of the prison) and custody (referring to the permissions of the inmate). Classification structures and processes shape much of the prison experience and, as such, are central to investigations of the effects of prison on inmate outcomes. Indeed, the extent of the deprivations inmates face during incarceration is largely determined by their institution, facility, unit, and custody levels. Discussing correctional classification across systems is challenging because classification designations take on a heterogeneous, nested structure, meaning that in some systems institution and facility are the same, in other systems facility and custody are the same, and in still other systems institution, facility, and custody are all distinct, with custody nested in facilities nested in institutions. In addition to classification structures, there are classification processes which are the set of procedures that correctional administrators use to determine security and custody levels. Classification criteria, processes, and timelines vary across departments of corrections. The general goals of classification procedures are to minimize the probability of escape and maximize the security of the department facilities, inmates, and staff, while housing the inmate at the least restrictive level possible and providing appropriate services. Correctional administrators must balance security and rehabilitative concerns in custody and security classification practices. In what is often described as a direct trade-off, most agencies prioritize the security and safety of inmates and staff over the treatment needs of inmates.
Gina Fedock and Stephanie S. Covington
As the number of women under correctional supervision continues to increase in the United States, attention to gender within correctional programming is crucial as women offenders present with different concerns than their male counterparts. Gender differences exist in a range of criminal justice factors, including pathways to involvement in the criminal justice system, frequencies in types of offenses, treatment needs, and facilitating factors for treatment engagement and positive outcomes. Thus, this chapter highlights the importance of gender in terms of correctional program design and delivery. Gender-responsive programming for women involved in the criminal justice system is guided mainly by the feminist pathways theory of women’s criminality, as well as additional theories. This framework considers the interconnected roles of trauma and victimization histories, substance abuse, economic and social marginalization, and the gendered effects of criminal justice policies and practices. For gender-responsive programming, elements that should be considered in women’s treatment and services in correctional settings include: program environment or culture or both, staff competence, theoretical foundations, treatment modalities, reentry issues, and collaboration. In addition, principles of trauma-informed care are crucial elements needed in systems and services for women involved in the criminal justice system. These two frameworks of gender-responsive programming and trauma-informed care offer specific principles that can be applied across correctional settings for women to shape policies, programming design, program delivery, and daily practices. Likewise, these frameworks encourage community-based responses to women’s involvement in criminal behaviors. Gender is a crucial element for correctional programming in multiple ways.
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.
Julie Brancale, Thomas G. Blomberg, and William D. Bales
The movements of accused and convicted offenders in many countries around the world are increasingly being monitored with electronic supervision tools. Individuals can be placed on electronic monitoring (EM) by the justice system for numerous reasons and can be of varying risk levels. Currently, individuals are placed on EM as conditions of pretrial release, probation, and parole. EM is a versatile tool designed to aid correctional officers in their supervision of offenders sentenced to confinement or house arrest. There are many forms of EM devices that are designed to limit the freedom and monitor the movements of individuals to ensure they are in compliance with court-mandated restrictions. In general, EM is intended to be an alternative to detention in either jails or prisons and is an intermediate sanction that is more punitive than traditional probation but less punitive than imprisonment. The expanded use of EM in recent years is largely attributable to financial constraints and overcrowding experienced by many jails and prisons. However, the empirical research of the effectiveness and unintended consequences is limited. There are serious concerns that have yet to be addressed about possible net-widening associated with EM use and whether it truly is an effective alternative to incarceration.
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.
Alexes Harris and Frank Edwards
Despite the central role that fines and other fiscal penalties play in systems of criminal justice, they have received relatively little scholarly attention. Court systems impose fines and other monetary sanctions in response to minor administrative and traffic offenses as well as for more serious criminal offenses. Monetary sanctions are intended to provide a deterrent punishment to reduce lawbreaking, to provide opportunities for accountability through financial restitution, to restore harm caused to victims of crime, and to fund the operation and administration of courts and criminal justice systems. Fines, fees, and other monetary sanctions are the most common form of punishment imposed by criminal justice systems. Most criminal sentences in the United States include financial penalties, and monetary sanctions are routinely imposed for less serious, and far more common, infractions such as traffic or parking violations.
For many, paying a monetary sanction for a low-level violation is an annoyance. However, for the poor and people of color who are disproportionately likely to be subject to criminal justice system involvement, monetary sanctions can become a vehicle for expanded social inequality and increasingly severe criminal justice contact. Failure to pay legal financial obligations often results in court summons or license suspensions that may have attendant additional costs and may trigger incarceration. In the United States, the criminal justice system is heavily and routinely involved in the lives of low-income people of color. These already-existing biases, coupled with the deep poverty that is common in many communities, join to widen the net of criminal justice involvement by escalating low-level infractions to far more serious offenses when people are unable to pay. Despite the routine justification of monetary sanctions as less-severe penalties, if imposed without restriction on the poor, they are likely to magnify the inequality producing effects of criminal justice system involvement.
In the contemporary era of “tough on crime” policies and the globalized drug war, the number of women in the criminal justice system has increased across several countries. Women’s involvement in the system is not limited to imprisonment, however, and many criminalized women (those involved in the justice system with the assigned status of defendants, offenders, etc.) participate in community-based programs after serving sentences in prisons or jails or as an alternative to incarceration. Criminalized women encounter multiple interlocking forms of oppression based on sexuality, race and ethnicity, class, disability, immigration status, punishment status, and (importantly) gender. Gendered ideas and norms shape the way women are treated not only by the carceral state but also by community-based, nongovernmental organizations (NGOs).
NGOs have played an increasingly prominent role in the provision of social services since the 1970s. Organizations working with criminalized people in more affluent, English-speaking nations commonly address job readiness, psychological and substance issues, parenting, sexuality, romantic relationships, and spirituality, among other important areas. Some NGOs work with criminalized people as a condition of their criminal sentences. Criminalized women’s self-reported needs are great, yet resources are often scarce, inadequate, and unwelcoming, particularly for women of color. Responding to a dearth of services available to women, feminists formed NGOs focused on this population beginning in the 1970s; women are also served at NGOs that work with men. “Reducing offending” and “empowerment” are frequently stated goals at NGOs that work with women, but these goals can be interpreted widely depending on the views of NGO leadership and staff about gender.
NGOs can approach women’s gender in a variety of ways. For instance, they can resist or affirm the dominant views used by the carceral state that criminalize and stigmatize women. Their approaches matter because of the implications for equality of opportunities that follow. Two major philosophies can motivate the outreach that NGOs do with criminalized women. Gender sameness disregards gender differences and stresses that it is necessary to treat women “like men” to reverse the disadvantages and marginalization that women encounter. Gender difference emphasizes the importance of treating men or women based on their purportedly unique characteristics and social experiences. Much critical feminist research on NGOs that work with criminalized women has studied programs formed around ideas of gender difference.
Critical researchers have examined gender in organizational work with women outside of prisons, in community-based prisons run by NGOs, and in more traditional prisons. Researchers have examined practices at programs, the philosophies underpinning them, and their implications. This body of work shows that NGOs can perpetuate gendered exclusions and may expand the power of the carceral state. In their prescriptions for responding to the status quo, critical researchers make arguments along a spectrum from advocating more moderate social change, such as by creating more effective programs, to more radical social change, such as by ending community-based programs that perpetuate carceral control.
Lynne Haney and Lili Dao
In many respects, gender has been missing from the enormous literature on the form and focus of state systems of punishment. This is true in both the historical accounts on shifts in penal practices and the scholarship on the contemporary emergence of mass incarceration. Gender is absent as a category of analysis and as an explanatory variable in these scholarly debates. At the same time, while there is a large literature on women in the criminal justice and penal systems, it rarely addresses broader questions of how and why the penal system has grown in size, deepened in scope, and broadened in reach over the last few decades.
There have been three major approaches to the study of gender and punishment. The first inserted women into accounts of the criminal justice and penal systems, which had historically concentrated on male offenders. Some of this early work used a historical lens to analyze shifts in women’s confinement practices, particularly the evolution of the reformatory in the 19th and early 20th centuries. Influenced by debates in feminist legal theory about sameness and difference, one major line of inquiry sought to determine whether women were treated more leniently than men, particularly with regard to sentencing. A second approach, gaining momentum in the 2000s, shifted the focus from gender differences in outcomes to the gendered dynamics of penal control. More qualitative in nature, this scholarship conceptualized gender as a process that was both transformed and harnessed in penal institutions. Drawing on a broader movement in gender studies, this work focused less on women per se than on how gender was socially constituted. The third and final approach takes seriously the call of critical legal scholars of race and gender to examine the intersections of disadvantage. While academic analyses of intersectionality came to the fore in the 1990s, this perspective made few inroads into penology and criminology until relatively recently. Recent work on the intersection of racialization, masculinity and punishment, and the sexual politics of the prison point to promising new directions that transcend common understandings of criminalization and punishment.
The use of detention for immigration purposes is a carceral trend that continues to increase across the world and is a phenomenon no longer limited to so-called western countries or the global north. Linked to the criminalization of mass migration under conditions of globalization, immigration detention can be understood as both a policy and a practice that is directed towards the control of unwanted human mobility. The extension of tactics traditionally used in the penal system to the realm of immigration control raises important questions about the purpose, justification, and legitimacy of immigration detention. Broadly defined as the confinement of non-citizens under administrative powers rather than criminal law to achieve immigration-related aims, immigration detention is one amongst an array of border control strategies aimed at the identification of migrants, the prevention of absconding, and the facilitation of their removal. Only recently has this form of confinement become the focus of criminological inquiry. Researchers have found that immigration detention has a profound impact on those who are detained, particularly on mental and physical health as well as on more complex issues of identity, belonging, human rights, and legitimacy. Empirical research has indicated that although the detention of migrants is not punishment, it is often experienced as such, with the prison emerging as a point of comparison through which to make sense of this practice. That the “usual suspects”―poor men and women of color―are the primary populations detained raises important questions about the use of immigration detention in the service of punitive and restrictive migration control strategies that further global inequality along the familiar lines of gender, race, and socioeconomic status.
Sara Wakefield and Janet Garcia-Hallett
The rapid rise in the incarceration rate, most notably in the United States over the last four decades, has drawn greater attention to the disabilities imposed by incarceration experiences and the spillover of these complications to the families of inmates. Prisons have always disproportionately drawn upon the disadvantaged, but research today details how imprisonment creates new harms for inmates as well as for those who are connected to them but were never incarcerated. In this contribution, the effects of incarceration on the family are briefly described across several domains. First, the social patterning of incarceration effects are described, for inmates and for their families, showing that imprisonment effects are both widespread and overwhelmingly repressive for some groups. Next, the effects of incarceration on the families of inmates are described, focusing on the partners and children of inmates, and differentiating between maternal and paternal incarceration. Incarceration is broadly harmful for families, but there is a significant gender gap in knowledge—research on paternal incarceration and the romantic partners of male inmates is much more common, rigorous, and uniform in findings. Where findings are mixed, scholarship is reviewed on how examining incarceration and family life has expanded across varying fields that often differ in their research approach, emphasis, and methodology. Finally, the discussion ends with the most pressing challenges for researchers going forward, suggesting that studies interrogating heterogeneity and leveraging new data sources offer the most fruitful path. This review is focused largely on the United States. First, and most practically, much of our knowledge about the effects of incarceration on the family is based on U.S.-based samples. Second, the effects of incarceration on the family have worsened significantly as a result of the prison boom in the United States. It remains to be seen how such effects translate to different contexts; some research suggests similar process at much lower incarceration rates, while others show less harm in other contexts.
A nation’s rate of incarceration is the number of people incarcerated as a proportion of its total population. Internationally, there is broad variation in the degree to which nations incarcerate their citizens, with a nearly 40-fold difference between the highest and lowest rates. The incarceration rate is often interpreted as a measurement of the degree of punitiveness in a society, although it is an imperfect measurement. Factors that may influence these rates include rates of serious crime, law enforcement and prosecutorial decision making, scale of prison admissions, length of time served in prison, and other means of social control in a society.
Emerging scholarship is exploring the broader societal factors contributing to a nation’s rate of incarceration. These studies explore policy initiatives to prioritize incarceration as a means of crime control, degree of inequality in a society, racial assumptions about crime, and the cultural values of a nation. With the rise of mass incarceration in the United States, a body of research has developed that is assessing the limited public safety benefits and collateral effects of these developments. These counterproductive effects include impacts on family formation and parenting in high-incarceration communities, rates of civic engagement, and the fraying of community bonds and informal social control.
Jason A. Brown and Valerie Jenness
In the 21st century, an unprecedented rise in the visibility of and social acceptance for lesbian, gay, bisexual, and transgender (LGBT) people has been accompanied by exponential growth in scholarship on LGBT people generally and their experiences in diverse communities and institutional contexts in the United States and around the globe. A growing body of literature draws on first-person accounts, qualitative analyses, and statistical assessments to understand how and why LGBT people end up in prisons and other types of lock-up facilities, as well as how they experience being imprisoned and the collateral consequences of those experiences.
Scholarship in this body of work focuses on (a) the range of abuses inflicted on LGBT prisoners by other prisoners and state officials alike, including mistreatment now widely recognized as human rights violations; (b) the variety of ways LGBT people are managed by prison officials, in the first instance whether their housing arrangements in prison are integrationist, segregationist, and/or some combination of both, including the temporary and permanent isolation of LGBT prisoners; and (c) the range of types of political mobilization that expose the status quo as unacceptable, define, and document the treatment of LGBT people behind bars as human rights violations, demand change, and advocate new policies and practices related to the carceral state’s treatment of LGBT people in the United States and across the globe.
The study of LGBT people in prisons and other detention facilities is compatible with larger calls for the inclusion of sexual orientation, gender identity, and gender expression in criminology and criminal justice researchby advancing theoretical and empirical understandings of LGBT populations as they interact with the criminal justice system, and by incorporating this knowledge into broader criminological conversations.
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.
Mass imprisonment in the United States is an epidemic that has spread across five generations affecting millions of individuals, their families, and hundreds of communities. The United States imprisons more people than any other nation in the world—with over 2 million behind bars and another 5 to 7 million under community supervision on parole and probation. With 5% of the world’s population, the United States has 25% of all the world’s prisoners. This U.S. system imposes many punitive policies, holding more of its citizens in isolation and solitary confinement than all the other prisons of the world combined and imposing the highest rates of life sentences of any nation. This public health analysis of mass incarceration in the United States (first proposed in Ernest Drucker’s 2011 book, A Plague of Prisons: The Epidemiology of Mass Incarceration in America) must therefore also address the high rates of prisoner reentry that accompany it—with over 600,000 U.S. prisoners reentering society each year—with the highest recidivism rate of any nation. This population is disproportionally poor and members of America’s large minority populations (African Americans and Latinos). The public health model provides a new tool for ending the American epidemic of mass imprisonment and, of equal importance, healing those who have survived its blows. This stage of the American story of mass incarceration is covered in Drucker’s 2018 book, Decarcerating America: From Mass Punishment to Public Health. But releasing people from prisons is not enough—the taint of punishment has a long-lasting and debilitating effect on the millions who return from prison to their home communities—facing social stigma and the many restrictions placed upon them as part of the conditions of parole—including limits of their access to public education, healthcare, and housing—as well as convicted felons’ loss of the right to vote. The United States badly needs a paradigm shift that replaces these impediments to successful reentry after prison, creating instead a positive place and normal life for this population in the outside world.
Numerous philosophical theories purport to justify a system of legal punishment. It is doubtful, however, that any of them successfully answer these three questions: Why punish? Whom to punish? How much to punish? Straightforward retributive theories, which justify punishment by looking back at the wrongful harm done by an offender, don’t adequately answer the question of why the offender should be harmed in return for harm done. More sophisticated retributive theories construe punishment as equalizing an unfair advantage taken by an offender. Such theories have difficulty with the question of how much to punish. Consent theories view offenders as willing punishment onto themselves by their voluntary acts. The various versions of this theory all fail to answer one or more of the three questions: why, whom, and how much. Rights forfeiture theories give a question-begging answer to the “why” question and don’t answer the question of how much. Consequentialist theories, which justify punishment by looking forward to results such as deterrence and incapacitation, have difficulties with whom to punish and how much. Arguably, punishing an innocent person who is believed to be guilty could deter potential offenders, and a serious offense might be deterred by a less severe punishment than a minor offense. Some philosophers see insurmountable problems for strictly backward-looking theories that appeal to guilt of the offender and for strictly forward-looking theories that appeal to future consequences. The solution, then, could be a theory that appeals to future results to provide a reason for punishing, but looks back at harm done by the offender to answer the question of whom to punish and how much. However, without a unifying rationale for taking these different approaches to these particular issues, such a mixed theory would be ad hoc if not incoherent.
In recent decades, philosophers have offered several approaches that might avoid the pitfalls described above by providing a unified rationale for punishment that is both backward and forward looking. Self-defense theories hold that it is rational and justifiable for the state to threaten punishment in order to defend citizens against offenses. They then move by various strategies from the justifiability of the threat to the justifiability of punishment. Forced choice theories justify punishment as a way of distributing necessary harm to the guilty rather than the innocent. Censure theories attempt to justify punishment as the state’s means of expressing disapproval of offenses against the law. Each of these theories faces difficulties, but proponents might judge that even though they haven’t yet been able to adequately state the justification of punishment, their theory is on the right track. Others view the difficulties faced by all theories and boldly conclude that punishment is not justifiable. There is little support for rehabilitation as an alternative to punishment. The practices associated with restorative justice, although not directly aimed at punishment, typically involve punishment, so they still require a justification for punishment. Whether a system of restitution could take the place of a system of punishment is problematic. The situation is made even more troublesome by the fact that the theories that have been surveyed aim to justify punishment in a society with a just political structure and laws. Even if such a theory succeeds, it is far from clear that it would justify punishment in a society where many of those who are harmed by punishment have also been victims of injustice.
Natti Ronel and Ety Elisha
Positive criminology is an innovative perspective that underlies existing theories and models emphasizing the positive forces that influence and assist individuals at risk and offenders in their recovery process. The theories and models included in positive criminology (e.g., peacemaking criminology, social acceptance, crime desistance, restorative justice) are not new; its novelty lies in their inclusion in a unique and distinct conceptualization. This has led to a shift in discourse and research in criminology, which goes beyond focusing on risk and criminogenic factors while focusing on the positive factors and strengths that help individuals to rehabilitate and successfully integrate into the community.
Studies and practices developed over the past decade have confirmed and reinforced the assumptions of the positive criminology perspective. Despite its specific limitations, positive criminology provides a promising platform for further developments and innovations in research in theory (e.g., positive victimology, spiritual criminology) and in practice (e.g., restorative justice, problem-solving courts, community policing).