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Article

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.

Article

Bryce Elling Peterson and Daniel S. Lawrence

Body-worn cameras (BWCs) are small devices that police officers can affix to their person—in a head-, shoulder-, or chest-mounted position—that can audio and video record their interactions with community members. BWCs have received strong support from the public and, in recent years, widespread buy-in from police leadership and officers because of their ability to improve accountability and transparency and enhance the collection of evidence. Implementation guidelines recommend that officers activate their BWCs during each officer–citizen interaction and inform the people they encounter that they are being recorded. Early research on this technology found that officers equipped with body cameras were significantly less likely to engage in force and receive citizen complaints. However, more recent studies with larger samples have had mixed findings about the impact of body cameras on use of force, citizen complaints, and other police activities and behaviors. Numerous legal and ethical considerations are associated with BWCs, including their implications for privacy concerns and public disclosure. However, police officials, policymakers, civil rights groups, and the public must continue to weigh these privacy concerns against the potential for BWCs to enhance police accountability and transparency. Future scholarship should focus on the degree to which BWCs can improve police–community relations and yield valuable evidence for both criminal cases and internal investigations.

Article

The dawn of the 21st century marked a turning point in the history of the American death penalty. Politically, the death penalty seemed vulnerable. A wave of abolitionism not seen since the Progressive Era took hold in the 2000s, as six states abandoned the death penalty, and governors in five others instituted moratoria, promising to use their executive power to stay all executions while they remained in office. While the Supreme Court remained committed to the constitutionality of the death penalty, it slowly chipped away at it in a series of decisions that narrowed the range of persons whom the state could execute. Public support for the death penalty, already in decline during the late 1990s, continued to fall in the 21st century. A number of factors depressed support for the death penalty to levels not seen since the early 1970s: a decline in violent crime and fear of crime; highly publicized DNA-based exonerations of death-row inmates; and wariness of the cost of maintaining the death penalty, particularly during the great recession of the late 2000s. The use of the death penalty was declining as well. The expansion of life without parole as an alternative punishment in the 1990s and 2000s gave juries in some states harsh alternatives to death sentences that they did not previously have. Longer-term changes to the judicial and penal administration of the death, meanwhile, continued to make the path between conviction and execution longer and more difficult for state officials to traverse. Most offenders sentenced to death since the 1970s were not (or have not yet been) put to death, and the average wait on death row for those who have been executed has grown to over a decade and a half. Growing problems with the practice of lethal injection, meanwhile, have posed new problems for states seeking to execute capital defendants in the 2000s, producing new legal battles and bringing executions nationwide to a temporary halt in 2007–2008. The 2016 election of Donald J. Trump to the presidency of the United States, however, may portend a slowing or reversing Americans’ 21st-century turn away from the death penalty.

Article

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.

Article

Marian R. Williams

The death penalty has long been a source of debate and is perhaps the most litigated sentence in the United States. Arguments for the use of the death penalty point to “just deserts” or retribution, while arguments against its use point to its implementation, including how the death penalty is administered (e.g., via electrocution, lethal injection), the types of offenses that are eligible for the death penalty (e.g., murder, rape, treason), and the offenders who are sentenced to death (e.g., males, minorities). This latter concern is the subject of much research, to the extent that a number of U.S. Supreme Court cases have addressed this research, especially in the cases Furman v. Georgia (1972) and McCleskey v. Kemp (1987). Research has indicated that those who are sentenced to death share common characteristics, including gender, minority status, social class, geography, and victim similarities. Overwhelmingly, research has noted that, in general, those who kill white victims are the most likely to receive a death sentence, particularly black offenders who kill white victims. Also, males are more likely to receive a death sentence than females, low-income individuals are more likely to receive a death sentence than higher-income individuals, and committing a capital offense in a handful of counties in the United States increases the likelihood of a death sentence. It is difficult to determine in most cases the reasons for this disparity. Outright discrimination by prosecutors, judges, and/or juries is a possibility, but the court system has made it extremely difficult for offenders to prove discrimination in their individual cases. Some researchers argue that the criminal justice system is stacked against minorities and the poor, by enforcing laws more forcefully in their neighborhoods and requiring financial resources to defend oneself (e.g., bail, defense attorneys). Regardless of the reason for disparate treatment in individual cases, the fact that disparate treatment exists is concerning in a country whose constitution emphasizes due process and equal protection under law.

Article

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.

Article

Stories involving false confessions can be emotional and moving, as they appeal to our innate desire for justice. As such, stories of false confessions can be powerful tools in books, films, and televisions shows. The way that a false confession is framed, and the context in which it is introduced to consumers (whether as readers or viewers) makes a big difference in how a false confession will be perceived. In fictional stories in print or on screen, typically the viewer (or reader) has some sense of a person’s true innocence or guilt. In a television show, the viewer may have already seen a clip of the crime with the true criminal. Other musical or visual cues may also give viewers clues as to the true guilt or innocence of an individual offering a confession to a crime. Because viewers know, or will know, the true identity of the person who committed the crime in question, the use of an interrogation or a false confession (or both) can be used to demonstrate the moral character of the confessor. In exactly the same way, the use of a false confession in a fictional story can be used to demonstrate the morality of a police officer or even a whole police department. For example, a scene depicting the interrogation of a suspect that viewers know is not guilty may be used to demonstrate the use of immoral, coercive interrogation techniques by television detectives. In nonfiction, the exploration of false confessions is often used to demonstrate the fallibility of the justice system. Because the idea that an innocent person would confess falsely to a crime that they did not commit seems incredibly counterintuitive to the average person, in-depth explorations (whether in documentaries, podcast series, newspaper or magazine expose, etc.) of the process by which false confessions can happen can be instrumental in helping people understand the reality of the phenomenon. The way a case or a confession is framed in the media and understood in popular culture also impacts our social construction of that person’s guilt or innocence.

Article

Valmaine Toki

In many jurisdictions, including Australia, New Zealand, Canada, United States and across the Pacific, offending rates for Indigenous peoples continue to be disproportionate to population size. For example, in New Zealand, Māori comprise over half the male prison population yet constitute only 15% of the national population. In Canada and the United States, where Indigenous people constitute 3.6 and 1.7% of the population, respectively, imprisonment rates are also disproportionate. Notwithstanding attempts to address these statistics, the overrepresentation of Indigenous peoples in prisons continues. However, Te Kooti Rangatahi, a marae-based (traditional-setting) “Indigenous court” for youths, has demonstrated some initial success as a unique initiative. This “court” integrates tikanga Māori (Māori culture) into the judicial process, with the aim of facilitating the reconnection of young people with their culture and involving the wider community. Te Kooti Matariki, an Indigenous court for adults, employs tikanga but within a mainstream court. A comparative perspective with the Navajo Common Law and Navajo Nation Tribal Court system demonstrates that the inclusion of Indigenous concepts into Western legal systems is not novel and should not in and of itself prevent the extension of Te Kooti Rangatahi and Te Kooti Matariki’s jurisdictions.

Article

Victim participation in common law has evolved across history and jurisdictions. Historical developments within conceptions of crime, harms, and victims in common law as well as the different victims’ movements provide an understanding of the ways that victim participation has been shaped in more-recent common law criminal justice systems. Victim participation in the criminal legal process has also given rise to various debates, which suggests that providing active forms of engagement to victims remains controversial. The forms of victim participation are also diverse, and the literature has provided typologies of victim participation. Forms of participation also vary across jurisdictions and the different stages of the criminal justice process, including prosecutorial decisions, pretrial and trial proceedings, sentencing, parole, and clemency. Finally, research that focuses on victim participation in legal traditions beyond the common law would provide an additional and important contribution to the field.

Article

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

Article

Christopher Seeds

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.

Article

Elise Sargeant, Julie Barkworth, and Natasha S. Madon

Fairness and equity are key concerns in modern liberal democracies. In step with this general trend, academics and practitioners have long been concerned with the fairness of procedures utilized by the criminal justice system. Definitions vary, but procedural justice is loosely defined as fair treatment and fair decision-making by authorities. In the criminal justice system, the procedural justice of authorities such as police officers, judicial officers, and correctional officers is evaluated by members of the public. Procedural justice in the criminal justice system is viewed as an end in and of itself, but it is also an opportunity to yield various outcomes including legitimacy, public compliance with the law, cooperation with criminal justice officials, and satisfaction with criminal justice proceedings and outcomes.

Article

Michael T. Light and Jason P. Robey

Amid global trends of increasingly mobile populations, scholars have debated whether national citizenship status remains relevant for international migrants. Some argue that international courts have practically eliminated the differences between citizens and noncitizens through equal protection under the law, while others maintain that national membership remains an essential form of stratification in modern societies. Recent trends in immigration enforcement seem to emphasize the continuing salience of citizenship, as criminal sanctions have become increasingly commonplace in border control. With the increasing importation of criminal justice strategies into migration policy, Western societies have witnessed dramatic increases in the number of noncitizens adjudicated and punished in recent decades, a trend that has gained considerable steam in the United States under the Trump administration. For example, between the president’s inauguration (January 20, 2018) and the end of the fiscal year (September 30, 2018), the number of immigration arrests increased by 42% over the same time period in 2016. Yet despite these debates and trends, the role of citizenship status has received only limited consideration within the field of criminology. In the same vein, the role of punishment has been underappreciated in the field of citizenship studies. Against this backdrop, theoretical insights from the sociology of punishment are connected with three central aspects of citizenship: (1) state sovereignty, (2) cultural understanding, and (3) group membership. Drawing these parallels to theoretical and methodological traditions within criminology will set new research paths for future scholars to understand criminology in the context of a globalizing world increasingly characterized by international migration.

Article

Marisa Omori and Oshea Johnson

There have been two major approaches to studying racial and ethnic inequality in punishment: The first approach comes from the sociology of punishment and social inequality literatures, and considers how the carceral state, including criminal justice institutions, create racial inequality through policies and practices broadly, or how racialized narratives are embedded in these policies and practices. This includes how scholarship has been drawn from institutional racism and other race literatures and integrated these ideas into how punishment policies and practices are racialized, as well as how the criminal justice system is both a consequence of and a contributor to increasing racial inequality. In particular, the social inequality literature has also been concerned with the rise of mass incarceration and its consequences for racial inequality in individuals, families, and communities. The second approach is drawn from the criminology literature on courts and sentencing, and generally focuses on the magnitude and location of racial disparities for individuals being processed in the criminal justice system, with a particular attention to sentencing outcomes. There are several complementary frameworks that have been used to frame racial inequalities in punishment outcomes; most of them focus on individual-level decisions and decision-makers, with some considerations of organizational-level factors. Most often, this literature also quantitatively tests racial disparities of court processing and court case outcomes, with a particular focus on sentencing of convicted defendants, including whether a defendant was sentenced to prison or not (the “in/out” decision), and the length of prison sentence. The two perspectives can inform each other; the sociology of punishment focuses on policies and practices that drive racial inequality, and the courts and sentencing literature focuses on the consequences of these factors in case processing outcomes.

Article

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.

Article

Kimberly Kaiser

Sentencing guidelines were created with the goal of reducing unwarranted disparities in sentencing outcomes based on race, gender, and other legally irrelevant characteristics in order to establish a uniform sentencing system. In the 21st century, approximately 21 states and the federal courts use sentencing guidelines, although the types of guidelines used vary, with some more restrictive than others. With the quest to create more uniform sentences, scholars have examined whether the guidelines have actually reduced unwarranted disparities in sentencing outcomes. One area that has received attention from sentencing scholars as an avenue for the potential reintroduction of disparity into the sentencing process is the ability to sentence offenders outside of the guideline range, a practice otherwise known as “sentencing departures.” Departures from guideline sentences are either below or above the suggested guideline range for a particular offense, with most departures resulting in below guideline sentences. Both judges and prosecutors have the authority to issue departures. Within the federal sentencing guideline system, prosecutors have the sole discretion to offer substantial assistance and other types of government-sponsored downward departures. The amount of discretion given to federal judges to depart from the guidelines has changed dramatically over the years, and the use of departures has subsequently increased in recent years. Research has examined whether this increase in departures has resulted in an increase in unwarranted disparity once again. This research has primarily focused on two related questions: (1) Have departures increased disparities in sentencing outcomes based on race, ethnicity, gender, or other factors? (2) Who is most likely to receive a departure sentence? Several studies have found there to be differences in likelihood of receiving departures; with African Americans, males, and offenders charged with specific types of crimes less likely to receive downward departures. Other research, however, has further suggested that the increased use of departures may not have increased sentencing disparities based on race or ethnicity. Additionally, a new scope of research has emerged which takes a more nuanced examination of sentencing departures; looking at variations among districts, policy disagreement departures, and other considerations. Ultimately, the current body of research on the use, consequences, and implications of sentencing departures has provided some mixed findings and many questions remain unresolved. As research on departures continues, our understanding of the complex nature of sentencing decisions under guideline based systems will continue to grow.