Early 21st century penal reform: A comparative analysis of four states' responses to the problems of mass incarceration

• Published date: 01 October 2023
• Author: Heather Schoenfeld,Michael C. Campbell
• Date: 01 October 2023
• DOI: http://doi.org/10.1111/lapo.12226

ORIGINAL ARTICLE

Early 21st century penal reform: A comparative

analysis of four states’responses to the problems

of mass incarceration

Heather Schoenfeld

1

|Michael C. Campbell

2

1

Boston University, Boston,

Massachusetts, USA

2

University of Denver, Denver,

Colorado, USA

Correspondence

Michael C. Campbell, University of Denver,

418 Sturm Hall, Denver, CO 80208, USA.

Email: michael.c.campbell@du.edu

Funding information

National Science Foundation, Grant/Award

Number: 1840914; Russell Sage Foundation,

Grant/Award Number: 2008-27023

Abstract

This manuscript uses data drawn from case studies of

New Jersey, Pennsylvania, Illinois, and Michigan

from 2000 to 2006 in order to examine how different

states responded to mounting problems caused by

mass incarceration. Lawmakers and penal adminis-

trators inherited correctional systems that had at

least doubled in size over the previous decade and

faced budgetary problems, overcrowded conditions,

and federal litigation. When economic pressures and

the 2001 recession destabilized state budgets, state

officials responded differently to these crises. While

legislators remained committed to the carceral ethos

that had driven prison expansion, some governors

and penal administrators charged with managing

state corrections systems began to consider new

responses that moved away from prison expansion.

As we show, executives and penal administrators in

some states successfully implemented reforms by

making changes to back-end correctional processes.

Their successes highlight the importance of auton-

omy from external pressures that allowed some

administrators to respond to mounting problems in

ways that reduced their state’s reliance on imprison-

ment. These administrators deployed their correc-

tional expertise to pursue policies that minimized

political backlash. States lacking the necessary insti-

tutional structures and sufficient external pressures

largely sustained the penal status quo.

Heather Schoenfeld and Michael C. Campbell are equal co-authors.

DOI: 10.1111/lapo.12226

©2023 University of Denver and Wiley Periodicals LLC.

482 Law & Policy. 2023;45:482–506.wileyonlinelibrary.com/journal/lapo

1|INTRODUCTION

Momentum for criminal legal system reform in the United States grew dramatically after the

2007–2008 global recession and financial crisis. Scholars argue that the recession motivated

political elites to question the wisdom of continuous growth in corrections budgets

(Aviram, 2015; Dagan & Teles, 2014; Green, 2015). Yet even before the financial crisis, some

US states had adopted policies that moderated some punitive measures (King, 2007). In fact,

the scholarly focus on the impact of the 2008 Great Recession has overshadowed earlier devel-

opments that began to moderate the penal excesses of the 1990s. While early reforms mainly

nibbled at the margins of the vast carceral state, five states experienced an overall decline in

prison population from 2000 to 2009 (Guerino et al., 2011). The existence of moderating penal

reforms at all was a significant shift from years of policy that only ratcheted up punishment

(Tonry, 2013). The reforms become all the more surprising when we consider that most politi-

cians still subscribed to a “carceral ethos”which meant that they at least had to appear “tough-

on-crime”(Schoenfeld, 2018).

1

In this paper, we take advantage of the US’s federalist structure which grants state govern-

ments control over their own systems of criminal punishment. As a result, penal policy can vary

substantially across states (Campbell, 2018). We leverage this variation to compare four states:

two that implemented reforms prior to 2007 that aimed to reduce state prison populations and

two that largely maintained the penal status quo and saw their prison populations continue to

grow. The case studies of penal reform in Illinois, Michigan, New Jersey, and Pennsylvania pro-

vide the first in-depth comparative examination of the politics of 21st century penal reform in

the United States prior to the 2008 Recession. Comparing across state case studies allows us to

identify decisions by state officials to embark on penal moderation or sustain the status quo,

and what shaped their decisions and their level of success.

2

Our case study comparison highlights how background economic and political processes

interacted with more proximate legal and institutional conditions to shape state penal trajecto-

ries. We find that the economic crisis created by the 2001 recession and the declining economic

prospects for Rust Belt states, along with new problems generated by mass incarceration, hel-

ped create political opportunities for governors and penal administrators to consider policies

that might reduce reliance on imprisonment. In all four states, governors appointed reform-

minded administrators to positions of power. Their subsequent policy decisions and the struc-

ture of the state penal system shaped administrators’authority and autonomy, which in turn

influenced administrators’ability to implement penal reforms. Because most legislators and law

enforcement interest groups continued to oppose policies that could be perceived as “soft-on-

crime,”policy decisions and structures that minimized political interference ultimately led to

more significant reform. In Michigan and New Jersey, financial and legal crises and decisions

to reconfigure the structure of their parole boards insulated administrators from popular and

political pressure. In turn, administrators increased access to parole, improved reentry services,

and reduced reincarceration for technical parole violations. Whereas in Illinois and Pennsylva-

nia, the structure or absence of parole release and initial policy choices limited reform-minded

administrators’autonomy and ability to effect change.

The findings contribute to calls by Garland (2013) and others (Rubin & Phelps, 2017)to

develop a more refined concept of the “penal state”or “those aspects of the state that determine

penal law and direct the deployment of the power to punish”(Garland, 2013, 498). First, our

comparison of four states highlights the neglected role of correctional administrators in the lit-

erature on penal reform. While most literature on penal reform focuses on legislators’actions

and changes to legislative law, the cases show how change can occur outside of the legislative

process. Second, the findings provide empirical support for the idea that more autonomy for

penal state actors can moderate popular demands for harsher punishment (Garland, 2013).

Prison administrators are uniquely positioned because they must attend to the problems and

SCHOENFELD and CAMPBELL483