Same old song and dance? An analysis of legislative activity in a period of penal reform
| Date | 01 October 2020 |
| Published date | 01 October 2020 |
| Author | Michael Campbell,Paige Vaughn,Heather Schoenfeld |
| DOI | 10.1177/1462474519887945 |
| Subject Matter | Articles |
Punishment & Society
Same old song and
2020, Vol. 22(4) 389–412
! The Author(s) 2019
dance? An analysis of
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1462474519887945
legislative activity in a
journals.sagepub.com/home/pun
period of penal reform
Michael Campbell
University of Denver, USA
Heather Schoenfeld
Boston University, USA
Paige Vaughn
University of Missouri–St. Louis, USA
Abstract
After years of tough-on-crime politics and increasingly punitive sentencing in the United
States, economic, political, and social shifts in the 21st century have created new oppor-
tunities for opponents of the penal status quo. By 2013, a majority of states had enacted
some type of reform aimed at reducing prison populations. An emerging body of punish-
ment and society scholarship seeks to understand the possibilities and characteristics of
reform efforts by examining enacted state legislation. In this article, we use a unique data
set of all proposed and passed bills in three legislative sessions in New Jersey between 2001
and 2013 to provide a nuanced empirical account of change and continuity in penal logics in
the period of reform. Even when not enacted, proposed legislation shapes the penal field
by introducing new ideas that are later incorporated into rhetoric, policy, or practice.
Proposed bills that never become law can also alter the political calculus for reformers or
their opponents. Our findings demonstrate that by expanding our universe of data, we gain
insight into characteristics of “late mass incarceration” that we might otherwise miss. In
particular, while we find evidence of decarceration and bifurcation logics, our analysis also
demonstrates that state lawmakers continue to participate in “crime control theater” and
reproduce the same punitive penal logics that helped build the carceral state.
Corresponding author:
Heather Schoenfeld, Department of Sociology, Boston University, 100 Cummington Mall, Boston,
MA 02215, USA.
Email: hschoenf@bu.edu
390
Punishment & Society 22(4)
Keywords
bifurcation, carceral state, governing through crime, mass incarceration, penal policy
In the second half of the 20th century, social, political, and economic shifts gave
rise to a culture of control which produced new cross-fertilizing penal and political
logics in the United States (Garland, 2001). By the 1990s, lawmakers acted as
though the state could control the risk of victimization through long prison sen-
tences and that it should do so regardless of cost. Believing that voters would
reward them for upholding this “carceral ethos,” lawmakers increasingly eschewed
balanced policy responses to crime in favor of punitive measures (Schoenfeld,
2018). Yet, by the turn of the 21st century, shifting attention to the war on
terror and the 2001 financial recession created new opportunities for opponents
of the status quo in the United States to restructure the dominant logic of the penal
field (Page, 2012). After 30 years of punitive policies that increased prison
populations, a handful of states began to scale back incarcerative measures
(King and Mauer, 2002; Wool and Stemen, 2004). With the mounting costs of
mass incarceration, after the 2008 recession new penal reform initiatives on the left
and the right gained momentum (Aviram, 2015; Clear and Frost, 2015; Dagan and
Teles, 2014). By 2013, at least 35 states had enacted some type of sentencing or
corrections reforms aimed at reducing prison populations (Subramanian et al.,
2014).
An emerging body of punishment and society scholarship aims to understand
the causes, characteristics, and possibilities of the contemporary shift in penality
(Beckett, 2018; Schoenfeld, 2016). Some scholars characterize the current moment
as a start of a “decarceration movement” or the end of a “punishment imperative”
where economic, political, and legal realities will continue to empower decarcera-
tion advocates to struggle against the status quo, gaining traction with each policy
victory (Clear and Frost, 2015; Dagan and Teles, 2016; Pettus-Davis and
Epperson, 2014). Other scholars argue that penality in “late mass incarceration”
has developed a distinctive “bifurcation” logic that takes a managerial approach to
one set of offenders and a politics of fear approach to another (Seeds, 2016). Many
others see continuity in the nature of penal reforms and argue that very little has
changed (Gottschalk, 2014; Green, 2015). Still others have embraced the present
moment by calling for scholars to contribute to a new interdisciplinary subfield of
critical carceral studies in order to challenge criminology’s complicity in maintain-
ing the carceral state (Brown and Schept, 2017).
The current scholarship, however, mainly conceptualizes the contours of “late
mass incarceration” through enacted penal policies—primarily at the state level.
Yet, as punishment and society scholars demonstrate, mass incarceration was more
than crime control policy, it was a way of thinking and a system of subordination
Campbell et al.
391
(Alexander, 2010; Simon, 2007). In fact, the war on crime and the politics of fear
fundamentally reshaped the logic of governance in the United States (Simon,
2007). In order to improve on characterizations of “late mass incarceration,” for
this article, we use a unique data set of state legislation that allows us to look
beyond enacted policy (Goodman et al., 2017). One of the primary institutions that
shape state penal policies, state legislatures in the 1980s and 1990s devised increas-
ingly punitive responses to crime, invested in criminal justice infrastructure, and
passed policies that drove up incarceration rates (Barker, 2009, Campbell, 2011,
2014; Lynch, 2010; Schoenfeld, 2018). Although recent scholarship emphasizes the
role of other institutional actors in creating (and therefore dismantling) the car-
ceral state, including the federal courts, prosecutors, and the police, it is difficult to
imagine sustained retrenchment that would not include legislative activity (Pfaff,
2017; Simon, 2014; Zimring, 2011).1
The data for this paper are drawn from a larger in-depth case study of state-
level penal reforms in New Jersey from 2001 to the present. New Jersey is an ideal
case to examine legislative activity during late mass incarceration. Like nearly
every other state, due to harsh sentencing laws in the 1980s and 1990s, New
Jersey experienced sharp and persistent increases in its prison population. Yet
from its peak in 1999, New Jersey’s prison population declined by 41% by 2016,
the largest percentage decline of any state (Bureau of Justice Statistics, 2019). As a
result, some advocates applaud New Jersey as a success story for criminal justice
reform (Schrantz et al., 2018). In addition, crime rates in New Jersey decreased
dramatically, much as they did in other states—going back down to rates not seen
since 1970 (Bureau of Justice Statistics, 2019). New Jersey’s trajectory, like that of
New York and several other Northeastern states, seemed to reflect a departure
from the penal status quo.
In order to understand the depth and breadth of state-level reform, we exam-
ined detailed legislative data from New Jersey between 2000 and 2013. Given that
so few bills are ever enacted into law, we analyzed all proposed legislative provisions
related to crime or criminal justice in three legislative sessions, including regulatory
and administrative provisions. This approach, while limiting the number of years
of legislation we could analyze, provides a more complete empirical account of
change and continuity in penal logics. Enacted legislation allows us to understand
what types of policies are politically viable, and they directly shape penal practice.
Proposed legislation—even when not enacted—provides a barometer of what types
of policies and ideas legislators are considering in a given historical moment. Many
bills take multiple legislative sessions before they finally collapse or become law.
As a consequence, even when not enacted, proposed legislation shapes the penal
field by introducing new approaches or ideas that are later incorporated into rhe-
toric, policy, or practice. In addition, proposed bills that never become law can
alter the political calculus for reformers or their opponents. For example, the
introduction and consideration of proposed bills maintaining the penal status
quo leaves reformers less political space to advocate their agenda. Alternatively,
far-reaching proposals by reform-minded legislators might cause opponents to
392
Punishment & Society 22(4)
compromise on more moderate reforms that they otherwise might oppose.
Ultimately, if a new penal logic is taking shape, then we would expect to see it
reflected in the substance of bills under consideration. As such, in this paper, we
ask: when we examine all legislative activity, including passed bills and non-passed
bills and the differences between them, do we find evidence of a new decarceration
logic, a new bifurcation logic, or the continuation of a carceral ethos?
We find that despite New Jersey’s status as a reform success story among main-
stream policy entrepreneurs, state legislators in New Jersey remain committed to
harsh penalties for violent crime and criminalization of public order problems.
In fact, although we uncover some evidence of a new direction in penal policy,
lawmakers continue to participate in “crime control theater” aimed at displaying
their support for “tough-on-crime” policies. Our findings suggest that, in New
Jersey at least, non-legislative activity is the main...
To continue reading
Request your trial