Margaret Colgate Love
Executive clemency has a rich history in the United States, both as an agent of justice and as a tool of politics. A presidential power to pardon was included in Article II of the Constitution, and all but one of the state constitutions provides for a clemency mechanism. States have established a variety of ways to manage and sometimes limit a governor’s exercise of the constitutional pardoning power, but the president’s power has remained unlimited by law. Until quite recently, clemency played a fully operational part in both federal and state justice systems, and the pardoning power was used regularly and generously to temper the harsh results of a criminal prosecution. Presidents also used their power to calm and unify the country after a period of strife, and to further policy goals when legislative solutions fell short.
But in modern times unruly clemency’s justice-enhancing role has been severely diminished, initially because reforms in the legal system made it less necessary, but later because of theoretical and practical objections to its regular use. A reluctance on the part of elected officials to take political risks, as well as clemency-related controversies, have further eroded clemency’s legitimacy. As a result, in most U.S. jurisdictions clemency now plays a limited role, and the public regards its exercise with suspicion. There are only about a dozen states in which clemency operates as an integral part of the justice system, in large part because its exercise is protected from political pressures by constitutional design. At the same time, the need for an effective clemency mechanism has never been greater, particularly in the federal system, because of lengthy mandatory prison sentences and the lifelong collateral civil consequences of conviction. It appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.
In the contemporary era of “tough on crime” policies and the globalized drug war, the number of women in the criminal justice system has increased across several countries. Women’s involvement in the system is not limited to imprisonment, however, and many criminalized women (those involved in the justice system with the assigned status of defendants, offenders, etc.) participate in community-based programs after serving sentences in prisons or jails or as an alternative to incarceration. Criminalized women encounter multiple interlocking forms of oppression based on sexuality, race and ethnicity, class, disability, immigration status, punishment status, and (importantly) gender. Gendered ideas and norms shape the way women are treated not only by the carceral state but also by community-based, nongovernmental organizations (NGOs).
NGOs have played an increasingly prominent role in the provision of social services since the 1970s. Organizations working with criminalized people in more affluent, English-speaking nations commonly address job readiness, psychological and substance issues, parenting, sexuality, romantic relationships, and spirituality, among other important areas. Some NGOs work with criminalized people as a condition of their criminal sentences. Criminalized women’s self-reported needs are great, yet resources are often scarce, inadequate, and unwelcoming, particularly for women of color. Responding to a dearth of services available to women, feminists formed NGOs focused on this population beginning in the 1970s; women are also served at NGOs that work with men. “Reducing offending” and “empowerment” are frequently stated goals at NGOs that work with women, but these goals can be interpreted widely depending on the views of NGO leadership and staff about gender.
NGOs can approach women’s gender in a variety of ways. For instance, they can resist or affirm the dominant views used by the carceral state that criminalize and stigmatize women. Their approaches matter because of the implications for equality of opportunities that follow. Two major philosophies can motivate the outreach that NGOs do with criminalized women. Gender sameness disregards gender differences and stresses that it is necessary to treat women “like men” to reverse the disadvantages and marginalization that women encounter. Gender difference emphasizes the importance of treating men or women based on their purportedly unique characteristics and social experiences. Much critical feminist research on NGOs that work with criminalized women has studied programs formed around ideas of gender difference.
Critical researchers have examined gender in organizational work with women outside of prisons, in community-based prisons run by NGOs, and in more traditional prisons. Researchers have examined practices at programs, the philosophies underpinning them, and their implications. This body of work shows that NGOs can perpetuate gendered exclusions and may expand the power of the carceral state. In their prescriptions for responding to the status quo, critical researchers make arguments along a spectrum from advocating more moderate social change, such as by creating more effective programs, to more radical social change, such as by ending community-based programs that perpetuate carceral control.
Sarah R. Bostrom and Melinda Tasca
The re-entry experiences of women are an important area of inquiry given the continued rise in female imprisonment. Since most inmates will be released, reintegration is a chief policy concern. Like men, re-entering women tend to be disproportionately of color, poor, undereducated, and parents of minor children. What sets women apart from men, however, is the accumulation and frequency of the adversities they encounter. To be sure, co-occurring histories of trauma, mental health, and substance abuse—commonly referred to as the “triple threat”—along with physical health concerns and poverty, distinctly shape female re-entry. Women with children face additional burdens due to their status as mothers. In particular, women’s responsibilities for children before incarceration, contact with children during confinement, and expected parental roles after release are quite different than those of fathers. Pressures to assume mothering roles and challenges with parent-child reunification can further complicate re-entry. Women require social support to successfully transition from prison to home. Social support helps women meet competing demands related to housing, employment, transportation, childcare, and community supervision. This assistance typically comes from informal networks that are invaluable to re-entry success. At the same time, women’s relationships are often highly complicated and can be sources of stress. While prosocial relationships are protective, unhealthy ties can contribute to re-entry failure. With respect to formal social support, gender-responsive interventions that target the unique stressors of formerly incarcerated women offer the most promise for effecting post-release change. Yet, such programs are not widely available or accessible to this population. Finally, it is important to take stock of primary sources used in the study of female re-entry to identify ways to advance research and policy in this area.
Ashley T. Rubin
Prisons are government-sanctioned facilities designed for the long-term confinement of adults as punishment for serious offenses. This definition of prisons, frequently belied by actual practice but an accurate representation of the prison as an ideal type, emerged relatively late in human history. For most of Western history, incarceration played a minor role in punishment and was often reserved for elites or political offenders; however, it was rarely considered a punishment in its own right for most offenders. The notion of the prison as a place of punishment emerged gradually, according to most accounts, over the 17th through 19th centuries. Although there were several precursors to penal incarceration, the most influential was the 17th-century Dutch workhouse, the first formal uses of penal incarceration in a prison as a distinct institution began with the American proto-prison in late 18th century and evolved into the modern prison in the early to mid-19th century. These modern prisons proved influential around the world. In late-19th-century America, however, the modern prison experienced a series of re-imaginings or iterations beginning with a proliferation of different forms, including distinctive forms of Southern punishment (convict leasing, chain gangs, and plantation-style prisons), specialized prisons across the country (women’s prisons, adult reformatories, and maximum-security prisons), and efforts to reduce reliance on prisons (drawing on innovations from Australia and Ireland). This flurry of activity was followed by a period of serial re-creation in the 20th century in the form of the big-house prison, the correctional institution, and the warehouse prison, including its subtype: the supermaximum-security prison. In this recent period, American prisons have once again become models copied by other countries.
Lynne Haney and Lili Dao
In many respects, gender has been missing from the enormous literature on the form and focus of state systems of punishment. This is true in both the historical accounts on shifts in penal practices and the scholarship on the contemporary emergence of mass incarceration. Gender is absent as a category of analysis and as an explanatory variable in these scholarly debates. At the same time, while there is a large literature on women in the criminal justice and penal systems, it rarely addresses broader questions of how and why the penal system has grown in size, deepened in scope, and broadened in reach over the last few decades.
There have been three major approaches to the study of gender and punishment. The first inserted women into accounts of the criminal justice and penal systems, which had historically concentrated on male offenders. Some of this early work used a historical lens to analyze shifts in women’s confinement practices, particularly the evolution of the reformatory in the 19th and early 20th centuries. Influenced by debates in feminist legal theory about sameness and difference, one major line of inquiry sought to determine whether women were treated more leniently than men, particularly with regard to sentencing. A second approach, gaining momentum in the 2000s, shifted the focus from gender differences in outcomes to the gendered dynamics of penal control. More qualitative in nature, this scholarship conceptualized gender as a process that was both transformed and harnessed in penal institutions. Drawing on a broader movement in gender studies, this work focused less on women per se than on how gender was socially constituted. The third and final approach takes seriously the call of critical legal scholars of race and gender to examine the intersections of disadvantage. While academic analyses of intersectionality came to the fore in the 1990s, this perspective made few inroads into penology and criminology until relatively recently. Recent work on the intersection of racialization, masculinity and punishment, and the sexual politics of the prison point to promising new directions that transcend common understandings of criminalization and punishment.
Disciplinary segregation is a punishment that prison officials impose in response to inmate violations of prison rules such as assaulting another inmate or disrespecting an officer. Disciplinary segregation is distinct from other types of restrictive housing (e.g., supermax confinement, administrative segregation), but it is the most commonly used form of restrictive housing in most states. Inmates housed in disciplinary segregation typically spend 23 hours a day in a cell, with limited interaction with other inmates or prison staff. Inmates’ access to other privileges such as recreation, programming, and visitation is also restricted during their time in disciplinary segregation.
Prison officials have the discretion to place inmates found guilty of violations of the inmate rules of conduct in disciplinary segregation, and indeed, segregation is a common response to rule violations. It is expected that confinement in disciplinary segregation will deter inmates’ subsequent rule breaking, but some scholars argue that confinement in disciplinary segregation amplifies inmates’ misbehavior via labeling or by stimulating mental health problems that ultimately result in problem behaviors (e.g., rule violations). Despite these assertions, there is little evidence regarding the impact of disciplinary segregation on inmates’ behavior or mental health. Precise estimates of the extent of the inmate population exposed to disciplinary segregation (and their level of exposure), and studies of the factors that influence prison officials’ decision to place inmates in disciplinary segregation are also limited. The frequency with which disciplinary segregation is used, its greater cost compared to general population confinement, and calls for the equitable and effective use of restrictive housing in prisons by civil rights advocates, the U.S. Congress, and former President Obama underscore the need for further research on the topic.
Gina Fedock and Stephanie S. Covington
As the number of women under correctional supervision continues to increase in the United States, attention to gender within correctional programming is crucial as women offenders present with different concerns than their male counterparts. Gender differences exist in a range of criminal justice factors, including pathways to involvement in the criminal justice system, frequencies in types of offenses, treatment needs, and facilitating factors for treatment engagement and positive outcomes. Thus, this chapter highlights the importance of gender in terms of correctional program design and delivery. Gender-responsive programming for women involved in the criminal justice system is guided mainly by the feminist pathways theory of women’s criminality, as well as additional theories. This framework considers the interconnected roles of trauma and victimization histories, substance abuse, economic and social marginalization, and the gendered effects of criminal justice policies and practices. For gender-responsive programming, elements that should be considered in women’s treatment and services in correctional settings include: program environment or culture or both, staff competence, theoretical foundations, treatment modalities, reentry issues, and collaboration. In addition, principles of trauma-informed care are crucial elements needed in systems and services for women involved in the criminal justice system. These two frameworks of gender-responsive programming and trauma-informed care offer specific principles that can be applied across correctional settings for women to shape policies, programming design, program delivery, and daily practices. Likewise, these frameworks encourage community-based responses to women’s involvement in criminal behaviors. Gender is a crucial element for correctional programming in multiple ways.
Alec C. Ewald
Collateral sanctions are legal restrictions on the rights and privileges of people who have experienced contact with the criminal justice system, particularly contact resulting in conviction. Usually placed in civil and regulatory codes, collateral sanctions may limit a person’s ability to vote, live in public housing, own a firearm, qualify for an occupational license, serve in the military, receive public benefits, sit on a jury, or borrow money for college, among other activities. Yet, because they are usually defined as “indirect” consequences of a conviction, they may never surface in the criminal justice process, and they frequently extend far beyond the sentence.
Such restrictions can deeply compromise the civic status and life chances of Americans with conviction records. But they are far from uniform: some serious restrictions are triggered by criminal justice involvement well short of a conviction, while others mark only some classes of offenders or operate only in some states. Layered into the federal system, multiplying the complications of criminal law and regulatory law, and imposed by civil servants with wide leeway in their interpretation of rules, American collateral sanctions are varied and complex. Their reach and severity in the United States appear to be unique in the democratic world and mark an important respect in which the American carceral state extends beyond mass incarceration.
The variables impacting how one experiences imprisonment are far ranging. George Jackson (1994), a pivotal character in American penal history, wrote that, “[b]lackmen born in the [United States] and fortunate enough to live past the age of eighteen are conditioned to accept the inevitability of prison” (p. 4). Ruth Wyner (2002), incarcerated 40 years after Jackson under vastly different circumstances, describes a very different sort of bleakness associated with her incarceration:
One evening, just before I settled down to try to sleep, I allowed myself to remember my daughter in a way that I usually suppressed: remembering and feeling all the love that I had for her, every bit. A huge chasm grew inside me, dark and raw, and my throat constricted as I felt enveloped by the sadness. This was what was inside of me when I allowed myself to touch it.
Such personal experiences of incarceration offer a window into how prisons function, or often more correctly, fail to function, from the point of view of the prisoner. These perspectives are vitally important to a fulsome understanding of incarceration because prisoners and their experiences paint a picture of confinement that is patently different from those described by penal officials and governments.
There are numerous issues that shape the experiences of confinement, both historically and in the present day, a list longer than can be adequately addressed in this entry. Still, there are key concerns that recur in the literature and in ongoing debates about incarceration. Included here are human rights abuses, overcrowding, the overuse of solitary confinement, the situation of women prisoners, the incarceration of indigenous peoples, and health, especially mental health concerns.
Risk is a pervasive feature of contemporary life, and has become a key feature of penal policy, systems of punishment, and criminal justice services across a number of the Anglophone jurisdictions. Risk as an approach to calculating the probability of “danger” or “hazard” has its roots in the mercantile trade of the 16th century, growing in significance over the intervening centuries until it pervades both the social and economic spheres of everyday life. Actuarialism, that is the method of statistically calculating and aggregating risk data, has similar roots, steeped in the probability calculations of the insurance industry with 20th-century extension into the arenas of social welfare and penality. Within criminal justice one of the first risk assessment tools was the parole predictor designed by Burgess in 1928. Since then we have seen a burgeoning of risk assessment tools and actuarial risk practices across the penal realm, although the extent to which penality is totally risk based is disputed. Claims for a New Penology centered on risk have been much debated, and empirical evidence would tend toward more cautious claims for such a significant paradigm shift.
Prevention and responsibilization are often seen as core themes within risk-focused penality. Risk assessment is used not only to assess and predict future offending of current criminals, but also to enable early identification of future criminals, “high crime” areas, and those in need of early interventions. The ethics, accuracy, and moral justification for such preventive strategies have been extensively debated, with concerns expressed about negative and discriminatory profiling; net-widening; over targeting of minority groups especially for selective incarceration; and more recently criticisms of risk-based pre-emption or “pre-crime” targeting, particularly of ethnic minorities. Responsibilization refers to the techniques of actuarial practices used to make persons responsible for their own risk management, and for their own risk decisions throughout the life course. In respect of offenders this is best expressed through corrective programs focused on “right thinking” and re-moralizing offenders toward more desirable social ends. Those offenders who are “ripe for re-moralization” and who present a level of risk that can be managed within the community can avoid custody or extended sentencing. Those who are not, and who present the highest levels of risk, are justifiably selected for risk-based custodial sentences. Such decision-making not only requires high levels of predictive accuracy, but is also fraught with severe ethical challenges and moral choices, not least about the desired balance between risks, rights, and freedoms.