Although the death penalty often appears a timeless question, the last three centuries have witnessed dramatic changes in the frequency and organization of capital punishment in Europe and America. This essay examines the history of the death penalty and how it has reflected changing social and judicial ideas. The punishment became a target of intense complaint in the eighteenth century, which led to a dramatic decline in its use and its disappearance from public view. Yet while abolition excited passionate commitment, other groups remained committed to the retention of the death penalty, seeing it as vital to the security of society as well as a legitimate expression of a healthy emotion. The fortunes of abolition or retention have been shaped by political developments in particular nations at different times, and the penalty retains a unique ability to condense and channel powerful sentiments about the nature and goals of state power.
Robert Apel and Daniel S. Nagin
This article begins with a discussion of key concepts of deterrence. Section II turns to empirical research on general deterrence. It considers the deterrent effect of the penultimate and ultimate legally prescribed sanctions, imprisonment, and execution. Section III discusses the deterrent effect of police, and reviews studies of aggregate police presence in addition to police deployment strategies. Section IV evaluates the strength of the evidence for perceptual deterrence, and the interplay of sanctions, perceptions, and behavior among individuals. The article concludes with some general remarks, a cautionary message about the limits of deterrence as a crime-control policy, and recommendations concerning future deterrence-based inquiry.
Sanja Kutnjak Ivković
This article is organized as follows. Section I focuses on the concept of police legitimacy, exploring it from the police agency perspective (i.e., why people obey the authority), and presents the empirical findings on legitimacy. Section II discusses what happens when police officers cross the line that separates legitimate and illegitimate conduct. Section III analyzes traditional and novel responses to the situations in which policing went wrong, including internal mechanisms (e.g., internal affairs, early warning systems), external mechanisms (e.g., criminal courts, independent commissions), and mixed mechanisms of control and accountability (e.g., accreditation, citizen reviews). Section IV reflects on the key issues and provides ideas for future research.
Mercy and Parole in Anglo-American Criminal Justice Systems from the Eighteenth Century to the Twenty-First Century
Mercy’s long association with the whims of emperors and monarchs altered with the emergence of republics and democracies in the modern era. Over the nineteenth century mercy became bureaucratized, and new administrative forms of discretionary justice—parole and tickets of leave—emerged in Anglo-American penal systems. However, the ancient prerogative of mercy persisted through the powers of executive elected officers and the Crown and its representatives. Parole, coupled with indeterminate sentencing, became a hallmark of modern justice, incorporating notions of individual reform and the managed reintegration of offenders; however, it faced widespread criticism by the late twentieth century, when faith in behavioral and social scientific eroded and concern over the uncertainties of discretionary release grew. The subsequent turn toward punitiveness and mandatory sentencing has, since the early 2000s, provoked calls to reactivate the pardon as a means to reduce harshness, felt most keenly by the poor and racially stigmatized communities.
The way a society punishes its offenders has become a yardstick by which it can be judged as civilized. In civilized societies, for example, punishment on the human body has become increasingly unacceptable. Prisons have been built in remote locations out of public view, with authorities responsible for undertaking what is seen as the unpleasant task of controlling the inmates. However, as the work of Norbert Elias shows, “being civilized” is a standard that did not simply fall out of the sky one day. Instead, it should be understood as the product of a long-term historical process, one that is contingent and fragile, capable of producing uncivilized consequences itself and capable of being interrupted at any time. Current changes in the penal framework of societies such as the United Kingdom suggest that we may be experiencing one of these “decivilizing” countertrends.
Ray Paternoster and Ronet Bachman
According to deterrence theory in criminology, we are affected by both the costs and rewards that are consequent to our behavior. In other words, we tend to behave based on the expectation that we will receive some type of reward for doing it while hoping to avoid some type of punishment for not doing it or doing something else. We also provide disincentives, such as the criminal justice system, in order to discourage crime. The criminal justice system can reduce crime by apprehending and punishing offenders based on two mechanisms: specific deterrence and general deterrence. Deterrence theory posits that the actual practices of the criminal justice system, or what is known as the objective properties of punishment, affect would-be offenders' decisions by way of the perceptual properties of punishment. The idea behind perceptual deterrence theory is that the perceived certainty, severity, and celerity of punishment are inversely related to the decisions by would-be offenders to commit crime.
This article discusses important ways of thinking about punishment. Section I discusses the history and recent past of work by philosophers and legal theorists. Section II surveys major works by social theorists, and Section III sketches work by political scientists on the day-to-day workings of criminal courts. The conclusion discusses a number of difficult issues concerning punishment that implicate all of the different ways of thinking about it.
Henrique Carvalho and Anastasia Chamberlen
This essay discusses the relation among emotions, punishment, and justice. It reviews theoretical scholarship on the role of punishment in society and sociological research on emotions, including the “emotive turn” in criminal justice and scholarship on the painful experience of incarceration. It argues that although punishment has been justified as a rational response to the problem of crime, there are emotional dimensions to its practice and function that go beyond crime. The authors suggest that the phenomenon of punishment is inherently affective, and propose that scholars of criminal justice should pursue a more rigorous study of how emotions, subjectivity, and self-identities contribute to the existence and framework of punishment in late-modern societies, in order to properly examine its role and limitations.
This article considers the point of systems of criminal justice; reviews Émile Durkheim's theory and its application to contemporary societies; reviews the evidence concerning the ways in which the criminal law can shape behavior other than by threat or imposition of punishment; examines the evidence for why people obey the law and the significance of the state's claim to legitimacy; and discusses the explosion of punishment in the United States and the United Kingdom, and analyses this as an expressive, Durkheimian attempt to shore up both the state's claim to legitimate sovereignty and the moral order of society. The article is informed by the thought that the most important effects of criminal justice do not result only from its involving the threat and imposition of punishment. These effects are intimately tied to the idea of legitimacy; and in evaluating them we cannot but help ask normative questions about the proper relation of the state to its citizens.
Kathleen Daly and Gitana Proietti-Scifoni
This article begins with an overview of the varied meanings of reparation, restoration, and restorative justice, as they are applied in domestic and international contexts of law and criminal justice. It also considers why these terms have become popular in recent decades. Sections II and III explore the history, etymology, and uses of the terms reparation, restoration, and restorative justice, and their links to retribution, restitution, and punishment. Section IV reviews a selected set of practices in domestic and international criminal justice, and transitional justice. The practices associated with reparation and restoration came first, and theories of their social mechanisms came later. Section V describes a selected set of theories, with a focus on behavior, speech, and interaction; and the conclusion considers several key points. Special attention is given to developments in international law and criminal justice, but the focus is on domestic criminal justice.
Anne Marie McAlinden
This essay examines the use of restorative justice in sexual offending. Restorative forms of intervention have been used in cases of violent or sexual offending, from first-time and ‘acquaintance’ rape as well as young sexual abusers to high-risk sexual offenders in the form of circles of support and accountability. Such schemes are often presented as a counter to the failings of retributive forms of justice and are premised on Braithwaite’s notion of ‘reintegrative shaming’ that seeks to reintegrate offenders into the community. The essay sets out and seeks to counter arguments against using restorative justice for sex crimes. For the most part, restorative justice has not reached its potential as a full-fledged sentencing rationale and has not been used in more serious cases. The essay examines barriers to restorative justice in contemporary penal policy and highlights some of its controversial applications, including those related to clergy sexual abuse.
This essay considers sex offender legislation in a number of countries, including England and Wales, Germany, and the United States, and details sex offender sentencing provisions in various systems. It evaluates the policies behind these laws. The essay deals with some key contemporary questions in relation to high-risk sex offending. Are policies being driven by populist punitiveness and an agenda based on public protection and preventive detention? Or are more welfare-driven goals taken into account? Particular sentences such as mandatory life and other forms of indeterminate sentencing, such as civil commitment, are evaluated and their use and efficacy considered. Whether such policies are lawful and also ethically acceptable is also evaluated.
This chapter traces sentencing policies and practices in California, including the decision to abandon indeterminate sentencing and the enactment of a sentencing reform statute called Realignment. It first discusses California’s sentencing policies and practices from 1970 through the sentencing reductions driven by litigation in the federal courts and by initiatives that have signaled the voters’ rethinking of California’s approach to punishment. It then considers how California has reversed the trend toward longer prison sentences, along with its Three Strikes legislation and its effect on California’s prison overcrowding crisis. It examines the declining crime rates in California and whether Three Strikes is responsible for that downturn; the national trend that has questioned the overuse of incarceration; the shift of prisoners from state prisons to county jails; and California’s failed efforts to adopt a sentencing commission in the past and prospects for future reforms. It concludes by looking at California’s death penalty.
Richard S. Frase
This essay evaluates the origins, purposes, operation, and evolution of Minnesota’s sentencing guidelines system, implemented in 1980. Topics examined include key guidelines provisions, related statutes, charging and sentencing practices, departure rates, interpretive case law, and correctional populations. The essay concludes that the goals of this pioneering sentencing reform have largely been achieved: punishments have become more uniform and proportionate; policy formulation is more comprehensive and informed by data; sentencing has been coordinated with available correctional resources to avoid prison overcrowding and set priorities in the use of prison beds; there is a greater degree of “truth in sentencing;” prison sentences are used relatively sparingly; and the guidelines remain fairly simple to understand and apply. Minnesota has also achieved a sustainable balance between conflicting sentencing purposes, between uniformity versus flexibility, and in the powers of the sentencing commission, the legislature, courts, and practitioners to control sentencing policy and case outcomes.
Jeffery T. Ulmer and Julia A. Laskorunsky
This article outlines the history and evolution of Pennsylvania’s sentencing policies and practices since the adoption of its sentencing guidelines in 1978. Pennsylvania’s sentencing practices have many features in common with other states, such as mandatory minimum sentences and intermediate punishment; however, the system also has some unique features, such as having two independent parole processes for county and state inmates and not awarding a “good time” reduction for state inmates. Major recent developments include the adoption of a sentencing risk assessment and the nullification of many of the state’s mandatory minimum laws. Pennsylvania remains one of the most studied states in sentencing research. Major empirical research on sentencing and incarceration patterns, disparity, and effects of policy changes is summarized.
Michael M. O'Hear
This essay provides an overview of sentencing policies and practices in the state of Wisconsin and considers their impact on the state’s imprisonment rate. Current policies and practices are placed in historical context. Since 1980, state policy has increasingly emphasized the role of the local sentencing judge in determining punishment. Most importantly, a 1998 law ended discretionary parole, which had served as a check on the increasing severity of judge-imposed sentences. Although the state’s prison population remains near its record high of the mid-2000s, there seems little interest in adopting new restrictions on judicial sentencing discretion or otherwise restructuring the sentencing and corrections system in a fundamental way. The essay concludes by describing some more modest reforms that seem politically viable in the near term.
Richard S. Frase
This article discusses the various theories of proportionality. The first section takes a look at the retributive proportionality principles, two varieties of retributive theory, and the ways non-retributive theories have included elements of retributive proportionality. From here the discussion shifts to two utilitarian proportionality principles and how these have been applied. This article also considers hybrid theories that combine retributive and non-retributive proportionality principles and locates these theories in current sentencing systems.
This chapter provides a synthesis of some of the useful prison policies discussed throughout this volume. The sources of useful versus harmful policies in addition to the implications of the latter are discussed. Perhaps the most common source of harmful policies has been heavier emphases placed on punishment by politicians and court actors who are further removed from the prison experience. Common denominators of policies that have generally improved the welfare of prisoners and/or prison staff, on the other hand, include grounding in an increasingly humanitarian view of offenders, a growing awareness of both short- and long-term adverse effects of incarceration on offenders and the general population, greater reliance on empirically based strategies, and interagency collaborations to ensure long-term solutions while minimizing unanticipated ill effects. The greatest obstacles to overcoming harmful policies are also reviewed, highlighting the importance of cumulative knowledge and ongoing empirical research on best practices.
Jack R. Greene
This essay examines the rise of zero-tolerance policies in policing and in other parts of the social world with the aim of considering how such policies have come about, what they intended, and what they have accomplished for better or worse. The number and types of police strategies have ballooned over the past twenty years or so. Some focus on improving police and public relations, while others are associated with “crime attack,” “broken windows,” and other forms of increased police control. Zero-tolerance policies have their roots in “problem solving,” yet they diverge from the problem-solving model by focusing almost exclusively on aggressive order-maintenance enforcement toward less serious public order behavior. Evidence of the effects of such activities is mixed, with some studies finding that are positive, and others showing erosion of police legitimacy in the face of zero-tolerance actions. The implications of such findings for public policing are considered.