Abstract
Students of criminal justice policy and politics generally agree that the past three decades have witnessed a dramatic shift toward harsh policies and practices in the United States.1 Capital punishment has returned to common usage, rehabilitationist policies have been turned to punitive purposes, and severe sentencing2 legislation has been passed in most states. Incarceration rates have risen dramatically, accompanied by record levels of spending on law enforcement, the courts, and corrections. David Garland has named this policy-shift “the punitive turn,” and a growing body of literature explores its manifestations, unintended consequences, and possible causes.3
Authors are listed alphabetically to denote equal and indistinguishable contributions to this chapter. The authors express their appreciation to the many policy organizations who make state-level data on crime policy available in published form and online; and to Hilary Worden for assistance in data management. The authors bear sole responsibility for the opinions and conclusions expressed herein.
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Notes
Katherine Beckett and Theodore Sasson, The Politics of Injustice (Thousand Oaks, CA: Pine Forge Press, 2004).
Bureau of Justice Statistics, “Expenditure and Employment Statistics” (2007), http://www.ojp.usdoj.gov/bjs/eande.htm (accessed Oct 2,2007). Nils Christie, Crime Control as Industry, 3rd ed. (London: Routledge, 2000).
David Garland, The Culture of Control (New York: Oxford University Press, 2001).
For example, Edward McGarrell and David Duffee, “Examining Correctional Resources: A Cross-Sectional Study of the States,” in Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice, ed. David Duffee and Edward Maguire (New York: Routledge, 2007).
Garland, The Culture of Control, 12.
Beckett and Sasson, The Politics of Injustice, 142.
Gregg v. Georgia (1976). Death Penalty Information Center, Facts about the Death Penalty, http://www.deathpenaltyinfo.org/FactSheet.pdf (accessed October 2 2007).
Trevor Jones and Tim Newburn, “Three Strikes and You’re Out: Exploring Symbol and Substance in American and British Crime Control Politics,” Criminology 46 (2006): 781–802. Franklin Zimring, Gordon Hawkins, and Sam Kamin Punishment and Democracy: Three Strikes and You’re Out in California (Oxford: Oxford University Press, 2001). Jackson Williams, “Criminal Justice Policy Innovation in the States,” Criminal Justice Policy Review 14, 3 (2003): 401–422.
William Sabol and Paige Harrison, Prison and Jail Inmates at Mid-Year 2006, Bulletin # NCJ217675 (Washington DC: Bureau of Justice Statistics, 2007).
James Stephan, State Prison Expenditures, 2001, Special Report # NCJ202949 (Washington DC: Bureau of Justice Statistics, 2004).
Herbert Packer, The Limits of the Penal Sanction (Stanford, CA: Stanford University Press, 1968), 153.
Garland, The Culture of Control.
Ibid.
Michael Tonry, Thinking About Crime: Sense and Sensibility in American Penal Culture (Oxford: Oxford University Press, 2004), 25.
Garland, The Culture of Control, 11.
We distinguish here between rights and privileges, although the distinction is not perfect. Defendants may be legally granted privileges (such as inmates’ privilege to work in prison or to receive visits from family). The granting and withholding of such privileges is a matter of administration and discretion, especially insofar as withholding privileges can be used as a form of discipline.
Powell v. Alabama, 1932.
Gideon v. Wainwright, 1963.
In re: Gault, 1967.
Argersinger v. Hamlin, 1972.
Though, see Strickland v. Washington, 1984.
Steven K. Smith and Carol DeFrances, Indigent Defense, #NCJ158909 (Washington DC: Bureau of Justice Statistics, 1996).
Andrew Davies and Alissa Pollitz Worden, “State Politics and Indigent Defense: A Comparative Analysis,” unpublished manuscript, 2007. Alissa Pollitz Worden and Andrew Davies, “Protecting Due Process in a Punitive Era: An Analysis of Changes in Providing Counsel to the Poor,” unpublished manuscript, 2007.
Radio-Television News Directors Association, “Cameras in the Court: A State-by-State Guide” (2005), available at: http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php (accessed, May 15 2007).
Administrative Office of the United States Courts, “Judicial Conference Acts on Cameras in the Courts,” The Third Branch: The Newsletter of the Federal Courts (April 1996), http://www.uscourts.gov/ttb/apr96/judconf.htm (accessed, Nov 24 2007). “New York State Committee to Review AudioVisual Coverage of Court Proceedings,” in An Open Courtroom: Cameras in New York Courts (New York: Fordham, 1997). New York State Defenders Association, “Cameras in NY Courtrooms White Paper” (1999), http://www.nysda.org/Hot_Topics/Cameras_in_the_Courts/03_Cameras_in_NY_Courts_NYSDA_1999_.pdf (accessed October 1, 2007).
Robert Meadows, “Rape Shield Laws: A Need for an Ethical and Legal Reexamination,” Criminal Justice Studies 17, 3 (2004): 281.
Andrew Soshnick, “The Rape Shield Paradox: Complainant Protection amidst Oscillating Trends of State Judicial Interpretation,” Journal of Criminal Law and Criminology 78 (1987): 644.
National Institute of Justice, Using DNA to Solve Cold Cases, Special Report # 194197 (Washington, DC: National Institute of Justice).
Barry Scheck, Peter Neufeld, and Jim Dwyer, Actual Innocence: Five Days from Execution and Other Dispatches from the Wrongly Convicted (New York: Doubleday, 2000).
National Conference of State Legislatures, State Laws on DNA Banks: Qualifying Offenses, Others Who Must Provide Sample (2007), http://www.ncsl.org/programs/cj/dnadatabanks.htm (accessed September 27, 2007).
American Society for Legal and Medical Ethics, Survey of Post-Conviction DNA Testing Statutes (2005), http://www.aslme.org/dna_04/grid/index. php (accessed October 2, 2007).
Rebecca S. Peterson, “DNA databases: When Fear Goes Too Far,” American Criminal Lrxw Review 37 (2000): 1219.
See the “Megan’s Law” statute at 42 U.S.C. 14071(e).
Devon Adams, Summary of Sex Offender Registries, 2001 NCJ #192265 (Washington, DC: Bureau of Justice Statistics, 2002).
Jill Levenson and Jill Cotter, “The Effect of Megan’s Law on Sex Offender Reintegration,” Journal of Contemporary Criminczl Justice 21, 1 (2006): 49.
Eric Janus, “Sexual Predator Commitment Laws: Lessons for Law and the Behavioral Sciences,” Behavioral Sciences and the Law 18 (2000): 5.
Roxanne Lieb and Kathy Gookin, Involuntary Commitment of Sexually Violent Predators: Comparing State Laws, Document # 05–03-1011 (Olympia, WA: Washington State Institute for Public Policy, 2005).
Rudolph Alexander, “The United States Supreme Court and the Civil Commitment of Sex Offenders,” The Prison Journal 84, 3 (2004): 361.
The Sentencing Project, Felony Disenfranchisement Laws in the United States (2007), http://www.sentencingproject.org/Admin/Documents/publications/fd_bs_fdlawsinus.pdf (accessed October 2, 2007).
Robert Crutchfield, “Abandon Felon Disenfranchisement Policies,” Criminology and Public Policy 6, 4 (2007): 707.
Pamela Karlan, “Convictions and Doubts: Retributions, Representation, and the Debate Over Felon Disenfranchisement,” Stanford Law Review 56 (2004): 1147. R. Anthony Duff, “Introduction: Crime and Citizenship,” Journal of Applied Philosophy 22, 3 (2005): 211.
Of course, bivariate associations do not tell us whether there are underlying dimensions connecting more than two variables. We performed a factor analysis of these eight policy measures. The results substantially corroborate the picture that emerges from the bivariate analysis (results available from authors). The analysis of these eight variables produces four factors, of modest eigenvalues. The first factor marks states that have adopted broad authority to collect DNA samples, have adopted civil commitment provisions for some violent offenders, and have kept access to sex offender information relatively restricted from public view. The second dimension marks the difference between states that are relatively generous in funding indigent defense, and that yet have prohibited any testimony at trial about rape victims’ relationships with accused defendants. The third scale suggests an association between permissive policy about courtroom cameras and restrictive policies about ex-offender voting rights. The last dimension taps the permissibility of cameras at trial and the denial of post-conviction DNA testing.
But see Stuart Scheingold, The Politics of Law and Order: Street Crime and Public Policy (New York: Longman, 1984).
McGarrell and Duffee, “Examining Correctional Resources.”
Daniel Elazar, American Federalism: A View from the States, 3rd edition (New York: Harper and Row, 1984).
V. Barker, “The Politics of Punishing: Building a State Governance Theory of American Imprisonment Variation,” Punishment & Society 8 (2006): 5–32.
Edmund McGarrell and Thomas Castellano, “An Integrative Conflict Model of the Criminal Law Formation Process,” Journal of Research in Crime and Delinguency 28, 2 (1991): 174.
James Eisenstein and Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown, 1977). Milton Heumann and Colin Loftin, “Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute,” Law and Society Review 12 (1979): 393. Stuart Scheingold, The Politics of Street Crime: Criminal Process and Cultural Obsession (Philadelphia: Temple, 1991).
Malcolm Feeley, Court Reform on Trial: Why Simple Solutions Fail (New York: Basic Books, 1983).
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© 2008 Iwan W. Morgan and Philip J. Davies
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Davies, A., Worden, A.P. (2008). Criminal Justice Policy Across the United States: Due Process in the Punitive Turn. In: Morgan, I.W., Davies, P.J. (eds) The Federal Nation. Studies of the Americas. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230617254_10
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DOI: https://doi.org/10.1057/9780230617254_10
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