Good governance, political experiences, and public support for mandatory sentencing: Evidence from a progressive US state
| Author | Kathryn Schwaeble,Cullen C Merritt,Jody Sundt |
| Date | 01 April 2019 |
| DOI | 10.1177/1462474517747580 |
| Published date | 01 April 2019 |
| Subject Matter | Articles |
Punishment & Society
Good governance,
2019, Vol. 21(2) 141–161
! The Author(s) 2017
political experiences,
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DOI: 10.1177/1462474517747580
and public support for
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mandatory sentencing:
Evidence from a
progressive US state
Jody Sundt
Indiana University—Purdue University Indianapolis, USA
Kathryn Schwaeble
North Carolina State University, USA
Cullen C Merritt
Indiana University—Purdue University Indianapolis, USA
Abstract
A shift in public mood and declining incarceration rates in the United States signal a
potential change in the politics of punishment. This research considers whether the
public continues to support mandatory sentencing. The study expands upon existing
knowledge by testing theoretical predictions about how instrumentalism, political
beliefs, and political participation affect public support for mandatory sentences.
Drawing on a state-wide survey of 1569 adults from Oregon, the study found that
belief in the effectiveness of prosecutors, judges, and prisons significantly influenced
support for mandatory sentencing. Although 67% of those surveyed favored judicial
discretion, a firm belief that “prisons work” may limit efforts to reduce incarceration
and roll back mandatory sentences.
Corresponding author:
Jody Sundt, School of Public and Environmental Affairs, 801 W. Michigan St., Indianapolis, IN 46202, USA.
Email: jsundt@iupui.edu
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Punishment & Society 21(2)
Keywords
judges, mandatory sentencing, prosecutors, public opinion, trust in government
Beginning in 2010, the US prison population declined for the first time in more
than 30 years. Five years later, it stood at 2005 levels (Carson and Anderson,
2016). The public mood in the United States has also moderated. Citizens are
willing to downsize prisons (Sundt et al., 2015) as long as it does not come at
the cost of public safety (Pew Charitable Trusts, 2012), and even traditionally
“tough” US states like Texas are pursuing reforms with broad citizen support
for treatment and prevention (Thielo et al., 2016). Optimists and reform advocates
point to these developments as signs of a social movement toward greater
tolerance.
There are also signs, however, that declines in the US incarceration rate and the
political will for reform are tenuous. Most of the decline in the US prison popu-
lation may be attributed to California and the federal prison system, while many
states continue to increase their rates of incarceration (Carson and Anderson,
2016). In California, reforms were driven by a unique confluence of political,
legal, and economic conditions (Schlanger, 2013). Declines in the federal prison
population occurred under the Obama Administration, which made criminal jus-
tice reform a priority. Now, the Trump Administration has signaled a return to
“law and order” and a rise in the homicide rate in several cities are again raising
alarms about the threat of violent crime (Epstein, 2017). To borrow a phrase, it
appears that reports of the death of punitive policy in the United States are
exaggerated.
Nevertheless, It is clear that the politics of punishment are changing. If the
prison build-up was the result of public demand for more punishment (Enns,
2014), will changes in public mood ultimately result in broader, sustained reduc-
tions in incarceration and a rollback of “tough” sentencing laws? This question
draws our attention to the way punishment is tied to political life. Cutting through
the complexity about the causes of mass incarceration in the United States, Travis
et al. (2014) explain that growth in imprisonment resulted from a choice to pass
laws increasing sentence lengths for a broader range of crimes.
By locating the source of mass incarceration within political processes that
affect sentencing and local decision-making, scholars focus our attention more
explicitly on the relationship between governance and punishment. For example,
Simon (2007) emphasizes how crime became a tool for governing, and crime con-
trol emerged as a tangible political good provided to fearful constituents who lost
confidence in the ability of traditional institutions and professionals to address
public safety. Barker (2009) also locates the growth in incarceration in political life
Sundt et al.
143
and argues that the ways individuals participate in democratic processes affect how
states use punishment and maintain legitimacy with their citizens. Pfaff (2017)
shows how local political incentives and disincentives encourage prosecutors and
other local criminal justice officials to overreact to increases in crime but little
reason to change policy when crime falls.
The current study considers whether the public continues to support mandatory
sentencing in the context of these broader social and political changes. The study
expands upon existing research by testing theoretical predictions about how instru-
mentalism, political beliefs, and political participation affect public support for
tough penalties. We consider these issues by surveying residents of Oregon.
Although Oregon is a progressive state politically, it also has a strong affinity
for mandatory sentencing and the Oregon prison population continues to grow.
These conditions provide an intriguing context to examine questions about polit-
ical beliefs and sentencing policies.
Public attitudes and the politics of punitiveness
Public opinion is central to debates about the role that politics play in shaping US
punishment policies. While we know that citizens’ attitudes are important, the
relationship between public opinion and public policy is complicated (Frost,
2010; Unnever and Cullen, 2010). It is unclear, for example, whether public opin-
ion drives sentencing policy or whether politicians motivate support for policies
with punitive rhetoric (Beckett and Sasson, 2000; Roberts and Hough, 2005;
Tonry, 2004). Gaubatz (1995) observes, “the movement in public opinion largely
preceded the changes in policy” during the get-tough era (p. 9). Nicholson-Crotty
et al.’s (2009) findings are consistent with Gaubatz. “[A] more punitive public
opinion results directly in more punishment. In [the] case [of Federal policy],
we know that demands for action from the government result in specific action”
(p. 652). More recently, Frost (2010) argues the relationship is reciprocal, “with
public opinion playing an important role in the development of public policy and
political posturing affecting public opinion” (p. 157).
The association between public opinion and punitive policies may also be exam-
ined through the lens of incarceration rates in the United States. For example,
Enns (2014) finds that punitiveness is a “fundamental determinant of the incarcer-
ation rate. In fact, if instead of becoming more punitive, the public’s support for
being tough on crime had remained constant since the mid-1970s. . . there would be
about 20% fewer people incarcerated today” (p. 869). Enns’ analytical strategy
is noteworthy because incarceration rates shed light on the effects of punitive
policies, rather than the mere existence of policies. Furthermore, the findings
provide a sense of how criminal justice officials respond to public opinion in
administering policy.
Several frameworks attempt to explain why the public supports getting tough
on crime. Of particular interest here are two ideas. First, individuals may endorse
punitive responses to crime because they believe that it is good policy—it protects
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Punishment & Society 21(2)
the public, is efficient, and serves justice. This view is consistent with a rational-
goal model of criminal justice (Feeley, 1973). According to this perspective, puni-
tive policies “work” and criminal justice professionals are considered competent
professionals who can effectively respond to crime. Second, punitive policies may
be influenced by political experiences, structures, and beliefs. This view posits that
punitiveness results from a lack of trust in government institutions and a sense that
criminal justice professionals are not responsive to public safety needs. The esca-
lating crime and distrust model is similar to the idea of a moral panic in regard to
the issue of crime, which explains the existence of a punitive trend even in the
absence of a rise in crime rates. In both of these views, perceived (if not actual)
increases in crime and fear of crime are thought to increase punitiveness. The two
perspectives differ, however, in predictions about how trust in government and
confidence in criminal justice professionals will affect punitiveness.
Public support for mandatory sentencing is an especially good exemplar of these
theoretical models due to the strong association between mandatory punishments
and “tough” crime control and the way that mandatory sentences substitute leg-
islative and prosecutorial authority for judicial authority. Simon (2007) observes
that prosecutors have replaced judges as the most trusted agent of the courts.
As the power of the prosecutor rose, he argues, judges began to be perceived as
betrayers of the common good, namely too soft on crime. Within mandatory
sentences we see strains of instrumental crime control and shifting ideas about
how government should exercise coercive authority. By mandating punishment,
mandatory sentences may also reflect a lack of trust in criminal justice professio-
nals to exercise discretion in the public interest (Zimring and Johnson, 2006).
Mandatory sentences have garnered mixed support in public opinion polls. In a
review of the...
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