Now that the Election is Over: The Future of Criminal Justice Reform

By Maria Valdovinos

In the remaining weeks of the Obama Administration, Barack Obama’s legacy as our 44th President was the subject of much reflection and deliberation. Recently, The Washington Post compiled an interactive piece, a “virtual museum” documenting his legacy and various initiatives with experts weighing in on the successes and failures of his time in office.

Throughout his tenure, President Obama tackled many “broken” systems for reform including our healthcare, economy, immigration, and criminal justice; no doubt a herculean order for two four-year terms. The conversations about successes and failures raise important questions about the meaning of reform. What does meaningful reform entail?

The facts on mass incarceration

Across four decades, the prison population in America has increased exponentially, from approximately 350,000 in 1970 to over 2 million presently (Travis, Western, and Redburn 2014:33). Currently, America’s prison population comprises 25 percent of the world’s prison population in any given year (Walmsley 2009; Weiss and MacKenzie 2010: 269).

Described as “the era of mass imprisonment” (Chesney-Lind and Mauer 2003; Garland 2001), the origins of over-incarceration in the U.S. are routinely traced back to the 1970s, a period marked by extremely punitive national drug policy. The Anti-Drug Abuse Act of 19861 is widely credited with accelerating the rate at which individuals were incarcerated because of its extensive criminalization of drugs and drug related offenses.

The statistics reveal that incarceration is disproportionately experienced by minorities and men, especially young African American men, Hispanics, and increasingly, women (Swavola, Riley, and Subramanian 2016; Travis, Western, and Redburn 2014) and that it takes place through legal, civil, and administrative pathways (Beckett and Murakawa 2012).

Criminal Justice and Sentencing Reform under the Obama Administration

In July 2015, President Barack Obama became the first sitting president to set foot in a federal prison, a symbolic move solidifying criminal justice and sentencing reform as one of his defining legacies (Horwitz and Lowery 2016). With his visit to the El Reno Federal Correctional Institution, Obama brought national attention to the conversation on mass incarceration and a hopeful vision for fixing our “broken” criminal justice system (Baker 2015).

Largely touted as one of the Obama Administration’s successes, among the criminal justice and sentencing reform efforts undertaken were a series of commutations totaling more than the last 11 presidents combined (Shear 2016), ending contracts with private prisons for federal inmates (Savage 2016), and several varied sentencing reform measures, such as those aimed at reducing a stark sentencing disparity for crack and powder cocaine offenses (Abrams 2010). Indeed, it was under the Obama Administration that we witnessed the first decline in U.S. prison populations in more than three decades (Goode 2013).

“Crimmigration”: A new iteration of our Criminal Justice System?

According to 2011 data from Immigration and Customs Enforcement (ICE), the number of immigrants held in detention facilities comprised 450,000 of those newly jailed (Hickey 2013). This “enmeshment” and blurring of institutional boundaries between “immigration and local criminal enforcement apparatuses” (Beckett and Evans 2015: 245) is referred to by legal scholars as “crimmigration” and it signals the development of another potential co-existing pathway to incarceration (Stumpf 2006). Among many different mechanisms to detention and/or incarceration in the U.S., the criminalization of previously civil immigration-related offenses is on the rise; so much so that in Ava DuVernay’s recent documentary “13th” scholars wonder whether it might be one of several new iterations of social control for specific groups of people.

While criminal justice and sentencing reforms are generally believed to be one of the Obama Administration’s more visible successes, in 2006, legal scholar Juliet Stumpf penned a dystopian scenario in the form of a memo to the incoming Administration identifying the “crimmigration crisis” as the defining issue of the President-Elect’s Administration (Stumpf 2006). On the heels of our most recent election and the rhetoric of the incoming Administration on issues related to immigration, this memo may not seem surprising at first except that Stumpf penned this scenario in 2006.

Acknowledgement of methodological divide

The emergence of a body of work on legal hybridity overlaps greatly with the ideological transformation and methodological expansion that has begun to take place concurrently within criminal justice studies and criminology fields. The work articulating legal hybrid pathways to incarceration has largely employed mixed methods designs. Whereas quantitative methods have been instrumental in establishing the scope and magnitude of certain phenomena, the integration of qualitative methods into the methodological design has been instrumental in identifying pathways and mechanisms.

Two cartoon hands shaking beside words that read "Smart on Crime"

Source: U.S. Department of Justice

 

Comprehensive and meaningful criminal justice system reform will need to recognize the interconnected entities leading to incarceration. The empirical evidence on recidivism and reentry increasingly suggests that for many, incarceration takes place through “invisible” pathways. To address research questions pertaining to criminal justice reform, key methodological debates need to be revisited. Given the complexity of the criminal justice system, we need to move beyond the quantitative/qualitative methodological divide or default, to embrace mixed methods and a more feminist perspective if we are to study the criminal justice system in its entirety.

This type of methodological approach is important because as Lin, Grattet, and Petersilia (2010: 761) argue, we seldom examine how institutional and structural changes, such as the emergence of mass incarceration, can be linked to “micro-sociological decisions,” or in other words, “the everyday practices of situated actors.” Meaningful criminal justice reform undoubtedly requires the embrace of research methods that allow researchers to access experience situated at the micro-level in order to explore how it is linked to experience manifested at the macro-level, such as mass incarceration. Efforts to overhaul “broken” institutional systems are herculean endeavors. While they are not impossible, they must be explored within the appropriate historical, genealogical, social and institutional frameworks. In an increasingly globalized world, these efforts must also be complemented by a comparative perspective.

Notes
1. The Anti-Drug Abuse Act of 1986 (P.L. 99-570, 100 Stat. 3207) was the legislative culmination to the “War on Drugs” declared by Nixon in the 1970s. It contains several harsh and unbalanced sentencing provisions for drug related offenses.
References
Abrams, Jim. 2010. “Congress Passes Bill To Reduce Disparity in Crack, Powder Cocaine Sentencing.” The Washington Post, July 29.
Baker, Peter. 2015. “Obama Calls for Effort to Fix a ‘Broken System’ of Criminal Justice.” The New York Times, July 14.
Beckett, Katherine and Murakawa Naomi. 2012. “Mapping the Shadow Carceral State: Toward and Institutionally Capacious Approach to Punishment.” Theoretical Criminology 16(2):221-244.
Beckett, Katherine and Heather Evans. 2015. “Crimmigration at the Local Level: Criminal Justice Processes in the Shadow of Deportation.” Law and Society Review 49(1): 241- 277.
Chesney-Lind, Meda and Marc Mauer, eds. 2003. Invisible Punishment: The Collateral Consequences of Mass Imprisonment. New York: The New Press.
Garland, D. 2001. “Introduction: The Meaning of Mass Imprisonment.” Punishment & Society 3(1):5–7.
Goode, Erica. “U.S. Prison Populations Decline, Reflecting New Approach to Crime.” The New York Times, July 25. Retrieved January 4, 2017 (http://www.nytimes.com/2013/07/26/us/us-prison-populations-decline-reflecting-new-approach-to-crime.html).
Hickey, Walter. “13 Charts That Show How Completely Broken the US Immigration System Has Become.” Business Insider, January 28. Retrieved January 4, 2017 (http://www.businessinsider.com/immigration-data-charts-reform-illegal-2013-1)
Horwitz, Sari and Wesley Lowery. 2016. “Obama’s Crusade Against A Criminal Justice System Devoid of ‘Second Chances’.” The Washington Post, April 26.
Lin, Jeffrey, Ryken Grattet, and Joan Petersilia. 2010. “‘Back-End Sentencing’ and Reimprisonment: Individual, Organizational, and Community Predictors of Parole Sanctioning Decisions.” Criminology 48(3):759–95.
Savage, Charlie. 2016. “U.S. to Phase Out Use of Private Prisons for Federal Inmates.” The New York Times, August 18.
Shear, Michael. 2016. “Obama’s 78 Pardons and 153 Commutations Extend Record of Mercy.” The New York Times, December 19. Retrieved January 4, 2017 (http://www.nytimes.com/2016/12/19/us/politics/obama-commutations-pardons-clemency.html)
Stumpf, Juliet P. 2006. The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power. Rochester, NY: Social Science Research Network.
Swavola, Elizabeth, Kristi Riley, and Ram Subramanian. 2016. Overlooked: Women and Jails in an Era of Reform. New York: Vera Institute of Justice.
Travis, Jeremy, Bruce Western, and F. Stevens Redburn. 2014. The Growth of Incarceration in the United States: Exploring Causes and Consequences. Washington, D.C.: The National Academies.
Walmsley, R. 2009. World’s Prison Population List. London: International Centre for Prison Studies.
Weiss, Douglas B. and Doris L. MacKenzie. 2010. “A Global Perspective on Incarceration: How an International Focus Can Help the United States Reconsider Its Incarceration Rates.” Victims & Offenders 5(3):268–82

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