The Struggle for Criminal Justice Reform

Cover for Breaking the Pendulum This is a guest post by Michelle Phelps, Joshua Page, and Philip Goodman.

The history of criminal justice in the U.S. is often described as a pendulum, swinging back and forth between strict punishment and lenient rehabilitation. Before the election of President Donald J. Trump, many argued the pendulum was swinging back toward leniency. As the President engages in race-baiting rhetoric around crime and immigration, and his administration promotes “tough” law-and-order policies like mandatory sentences for drug offenses, many claim the pendulum is again swinging, this time back to retribution.

While this view of a swinging pendulum is common in public discussions of crime and punishment, it is wrong. In our recent book, Breaking the Pendulum: The Long Struggle Over Criminal Justice, we argue that the pendulum perspective distorts how and why criminal justice changes.  The pendulum metaphor (and scholarship that employs “pendular logic”) blinds us to the blending of penal orientations, policies, and practices, as well as struggles between actors that shape laws, institutions, and how we think about crime, punishment, and related issues. We offer an alternative approach, positing that struggle is the motor force of criminal justice history. Punishment expands, contracts, and morphs because of contestation between real people in real contexts, not a mechanical “swing” of the pendulum. These struggles take place within prevailing social-structural contexts (including trends in the economy, politics, social sentiments, inter-group relations, demographics, and crime), which create opportunities and constraints for agonists (rather than mechanically propelling change). This alternative framework is far more accurate and empowering than those that ignore or downplay the importance of struggle in shaping criminal justice.

The book’s chapters provide a re-analysis of more than two hundred years of penal history, starting with the rise of penitentiaries in the 19th Century and ending with ongoing efforts to roll back mass incarceration. In each chapter, we highlight the actors and social-structural conditions in specific places that shaped local (and sometimes national) punishment. We show, for example, how labor movements, which often saw new penal institutions as generating unfair competition for free labor, resisted the country’s earliest prisons. Moving forward to the “rehabilitative era” of the 1950s and 1960s, we document how prison officer unions and other groups thwarted and subverted progressive reforms pushed by department administrators. Struggle “on the ground” greatly shaped correctional efforts (often sharpening their punitive edges) and paved the way for the eventual decline of the rehabilitative ideal.

Our final empirical chapter focuses on the rise of mass punishment in the late twentieth century and recent efforts to shrink the penal state. Instead of a wholesale transformation from a relatively lenient, rehabilitative criminal justice to harsh and exclusively punitive one, this period is better understood as the repackaging and reformulating of existing penal logics and practices. Rehabilitation did not die off; it transformed, becoming increasingly neoliberal (e.g., ever-more influenced by actuarial logics) and neoconservative (e.g., ever-more moralistic and responsibilizing). Further, throughout the 1980s, 1990s, and early 2000s, actors struggled against the hardening of punishment in areas such as sentencing laws and expanding use of solitary confinement. This contestation produced fissures that cracked open as the economy tanked, crime rates steadily declined, and politicians slowly (and unevenly) embraced reform.

As we analyze this history, we pay careful attention to the ways race, class, and gender shape penal reform. For example, Progressive Era penitentiaries (in the South and the rest of the country) were oriented around reforming white men with black Americans often relegated to farm plantation work (sometimes leased to private interests), harvesting tar and pitch, building roads, and other back-breaking physical labor. Women prisoners (particularly black women), often faced dire conditions, including hard physical labor and sexual violence. As is well-known, the expansion of mass incarceration—and particularly the drug war—disproportionately affected black Americans. However, as we show in the final chapter, the racial politics of the rise of the drug war are nuanced; policies like the New York’s Rockefeller drug law emerged as a complex interplay between social problems (especially drug addiction), black residents’ demands for more safety, and elite lawmakers’ desires to appeal to white suburban voters. Finally, across this history, punishment has typically been reserved for the poorest among us.

Given events unfolding during and after our book went to press, many readers will want to know: What does the agonistic perspective have to say about the Trump presidency? For one, as we’ve argued, many local municipalities and states are continuing to make punishment more moderate in scope and progressive in orientation. What is more, our perspective suggests that all of the contestation happening today against the Trump administration’s policy is important—even if tangible victories feel fleeting in the moment. Often, those advocating for change get frustrated with transformation’s slow progress, which is understandable because, from their perspective, existing policies, practices, images, and rhetoric produce major social suffering. Pendular thinking and its vision of rupture contribute to that consternation.

We forget that penal earthquakes (such as the rise of mass incarceration) develop over long periods of time—they begin as fissures that splinter and expand before producing shockwaves across the field. Breaking the Pendulum encourages us to see the potential of gradual changes to produce instability in the penal landscape (to shake things up!) that can generate major transformations, as long as combatants see those small victories as means to greater ends— rather than ends in themselves—and continue the fight.

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