Politics of Criminal Justice Reform

by

Garrick Percival

• LAST REVIEWED: 26 April 2018
• LAST MODIFIED: 26 April 2018
• DOI: 10.1093/obo/9780195396607-0240

Introduction

Since the mid-1970s, criminal justice policy in the United States has placed primary emphasis on punishment, incapacitation, and formal mechanisms of social control. These efforts, unfurled in the form of higher rates of arrests and felony charges, longer criminal sentences, and increasingly punitive probation and parole practices, contributed to a phenomenon now commonly known as “mass incarceration.” Yet in the early 21st century, after a generation during which “tough on crime” politics held a hegemonic grip on America’s crime discourse and policy, criminal justice policy in the United States entered an important, albeit fragile, era of reform. Lawmakers and activists on opposite sides of the ideological spectrum have joined forces at all levels of government in a bid to reform the American justice system. Reformers aim to construct a penal system that lowers crime but incarcerates far fewer people, a system that generates fewer social and economic costs in both lives squandered and dollars spent, and a system that adheres to fundamental democratic principles of equality and fairness. This bibliography provides an overview of the literature on the politics of criminal justice reform. It begins with literature that places the contemporary reform movement in historical context. It reviews political, economic, and institutional forces that have animated a national movement for reform. It engages with an ongoing debate among scholars, activists, and lawmakers about what principles should guide the movement, the processes and outcomes that define “success,” and who should most benefit and why. Some scholars, for example, lament that too much focus is being placed on diverting nonviolent offenders from prison when more attention and resources are needed to address offenders charged with violent crimes, who make up a much larger share of the US prison population. Other prison reformers are chiefly motivated by the lure of financial savings or achieving their goal of limiting the power of an overly burdensome regulatory state, while still others see the movement as a fight for fundamental civil and human rights. The literature cited makes clear that the politics of criminal justice reform is fraught with structural, political, and policy-related challenges. Despite these challenges, a new set of less punitive laws, regulations, and criminal justice programs—each in its own way designed to decrease the number of incarcerated persons—are spreading across governments around the country. All offer signals that America’s criminal justice systems are entering an important period of reform and renewal.

Mass Incarceration

A study of the contemporary criminal justice reform movement requires understanding the political forces that contributed to mass incarceration in the first place. This history not only offers insight into the political barriers the reform movement has had to overcome—it also captures how the politics of crime control and the design of the American governing system may present significant impediments to deeper, more consequential reforms in the future. Readers might begin with National Research Council 2014, which provides a comprehensive analysis of the causes and consequences of mass incarceration in the United States. Garland 2001b is another excellent source. Many scholars investigating America’s evolution toward mass imprisonment have done so using a distinctly national lens. Tonry 2009 deconstructs the unique forces behind the US imprisonment binge, particularly in comparison to western European democracies. Garland 2001a sees “populist punitiveness” and mass imprisonment as a societal response to rising crime and social and economic dislocation during the 1960s and 1970s. Simon 2007 describes how lawmakers used the prison as a state-sponsored legitimization project, promising public safety and security in the wake of the collapse of the New Deal order. In a provocative thesis, Murakawa 2014 places blame on liberal policymaking of the 1940s–1960s. Alexander 2010 argues that mass incarceration must be viewed through the prism of America’s long and ugly history surrounding race and racial animus. Weaver 2007 develops a similar race-conscious theme. In a departure from these national narratives, another set of research points our attention to crime politics of subnational governments. As Lynch 2011 demonstrates, national-level studies of punishment mask important complexities inherent in the justice system—the United States doesn’t have one criminal justice system, but thousands of them. City police forces, sheriffs, prosecutors, judges, probation officials, and state correctional and parole agencies all play important roles in deciding matters of criminal law and its enforcement in real time. The question of why some governments punish more while others punish less turns on the structure of local politics and institutions. Pfaff 2017, for example, finds the growing propensity of county prosecutors to charge more crimes as felonies in the 1990s to be the main driver of mass incarceration. Brown 2016 demonstrates how the relative influence of state-level political, social, and economic conditions on states’ rates of imprisonment actually varies across time and across different groups of states.

• Alexander, Michelle. 2010. The new Jim Crow: Mass incarceration in the age of colorblindness. New York: New Press.

  This book’s central claim is that mass incarceration and the “War on Drugs” serve as the latest set of laws, policies, and customs, following slavery and Jim Crow, designed to subjugate blacks and relegate them to permanent second-class status.

• Brown, Elizabeth K. 2016. Toward refining the criminology of mass incarceration: Group-based trajectories of U.S. states, 1977–2010. Criminal Justice Review (7 February, Online First).

  DOI: 10.1177/0734016815627859

  Brown notes that all state governments experienced growth in their prisoner populations from the 1970s through the 2000s, but this articles demonstrates how state imprisonment rates grew at a varied pace and for different reasons. Brown provides a set of clear illustrations of how the forces driving mass imprisonment at the subnational level vary across time and space.

• Garland, David. 2001a. The culture of control: Crime and social order in contemporary society. Chicago: Univ. of Chicago Press.

  A sweeping historical account of how economic and social disruption in the 1960s and 1970s ushered in an era of “popular punitiveness” and mass imprisonment in the United States.

• Garland, David. 2001b. Mass imprisonment. London: SAGE.

  “Mass imprisonment” or “mass incarceration” are terms often used to describe America’s contemporary penal system. This piece conceptualizes the meaning of mass imprisonment, what makes it unique, and why it matters.

• Lynch, Mona. 2011. Mass incarceration, legal change, and locale: Understanding and remediating American penal overindulgence. Criminology & Public Policy 10.3: 673–698.

  Lynch describes the decentralized structure of American criminal justice institutions, how institutional incentives shape decisions to punish, and why state and local governments and agencies will play a crucial role in criminal justice reform efforts.

• Murakawa, Naomi. 2014. The first civil right: How liberals built Prison America. New York: Oxford Univ. Press.

  In fighting for fairer criminal processes and procedures, rather than for substantive limits on punishment, Murakawa argues that liberal-minded criminal justice reformers during the 1940s–1960s provided the legal and institutional architecture for military-style policing, mandatory minimum sentences, and stringent parole and probation practices.

• National Research Council. 2014. The growth of incarceration in the United States: Exploring causes and consequences. Edited by the Committee on Causes and Consequences of High Rates of Incarceration, Jeremy Travis, Bruce Western, and Steve Redburn. Washington, DC: National Academies Press.

  This National Research Council report offers a comprehensive analysis of the causes and consequences of mass incarceration. Topics covered include the politics of crime, criminal sentencing, probation and parole, and mass incarceration’s contribution to the decline in American crime rates. The report includes individual chapters on mass incarceration’s effect on employment, mental health, communities, families, and children.

• Pfaff, John. 2017. Locked in: The true causes of mass incarceration and how to achieve real reform. New York: Basic Books.

  Pfaff rejects the popular argument that the national War on Drugs caused the mass incarceration crisis. The book makes a persuasive case that mass incarceration was largely caused by more people filing into the criminal justice system as local prosecutors charged more crimes as felonies in the 1990s.

• Simon, Jonathan. 2007. Governing through crime: How the War on Crime transformed American democracy and created a culture of fear. New York: Oxford Univ. Press.

  The collapse of the New Deal order in the 1970s left the public disillusioned with government. In this book, Simon argues that politicians undertook a new project in response, which he calls “governing through crime.”

• Tonry, Michael. 2009. Explanations of American punishment policies: A national history. Punishment and Society 11.3: 377–394.

  DOI: 10.1177/1462474509334609

  Relative to other advanced Western democracies, the United States has an extraordinarily high rate of incarceration. This article asks why by placing the US case in comparative perspective.

• Weaver, Vesla. 2007. Frontlash: Race and the development of punitive crime policy. Studies in American Penal Development 21.2: 230–265.

  Weaver offers an important historical explanation of how crime and race became intricately tied together in American political discourse. “Law and order” conservative Republicans in the 1950s and 1960s learned to stoke fear of crime by priming whites’ racial animosity toward blacks.