US Criminal Justice Policy and Practice in the Twenty‐First Century: Toward the End of Mass Incarceration?

• Date: 01 October 2018
• Author: Lindsey Beach,Anna Reosti,Emily Knaphus,Katherine Beckett
• Published date: 01 October 2018
• DOI: http://doi.org/10.1111/lapo.12113

US Criminal Justice Policy and Practice in the

Twenty-First Century: Toward the End of Mass

Incarceration?

KATHERINE BECKETT, LINDSEY BEACH, EMILY KNAPHUS, and

ANNA REOSTI

Although the wisdom of mass incarceration is now widely questioned, incarceration rates have

fallen far less than what would be predicted on the basis of crime trends. Informed by institutional

studies of path dependence, sociolegal scholarship on legal discretion, and research suggesting that

“late mass incarceration” is characterized by a moderated response to nonviolent crime but even

stronger penalties for violent offenses, this article analyzes recent sentencing-related reforms and

case processing outcomes. Although the legislative findings reveal widespread willingness to moder-

ate penalties for nonviolent crimes, the results also reveal a notably heightened system response to

both violent and nonviolent crimes at the level of case processing. These findings help explain why

the decline in incarceration rates has been notably smaller than the drop in crime rates and are con-

sistent with the literature on path dependence, which emphasizes that massive institutional develop-

ments enhance the capacity and motivation of institutional actors to preserve jobs, resources, and

authorities. The findings also underscore the importance of analyzing on-the-ground case processing

outcomes as well as formal law when assessing the state and fate of complex institutional develop-

ments such as mass incarceration.

I. INTRODUCTION

The dramatic expansion of the US penal system in recent decades has stimulated much

research regarding the causes and consequences of this unprecedented development.

Studies show that shifts in policy and practice, rather than increases in the crime rate,

were the primary driver of penal expansion (Neal and Rick 2014; Travis, Western, and

Redburn 2014; Raphael and Stoll 2009, 2013; PEW Center on the States 2012; Western

2006; Blumstein and Beck 1999). Specifically, changes in the exercise of police and prose-

cutorial discretion—and especially the effort to identify and punish drug law violators—

explain much of the rise in incarceration rates (Travis, Western, and Redburn 2014;

Blumstein and Beck 1999). Increasingly long sentences and prison stays, especially for

violent crimes, have also contributed importantly to mass incarceration (Travis, West-

ern, and Redburn 2014; Raphael and Stoll 2009, 2013; PEW Center on the States 2012;

Western 2006).

Thanks to Bruce Western and to participants in the University of Washington Department of Sociology’sdevi-

ance seminar, particularly Charlie Hirschman, for useful feedback on an early version of this article. This

research was supported by the National Science Foundation’s Law and Social Sciences program (#1456180).

Address correspondence to: Katherine Beckett, University of Washington—Law, Societies & Justice, Box

353565, Seattle, WA 98115, USA. Telephone: 206-543-4461; E-mail: kbeckett@uw.edu.

LAW & POLICY, Vol. 40, No. 4, October 2018

©2018 The Authors

Law & Policy ©2018 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12113

ISSN 0265-8240

The consequences of mass incarceration, including its highly disparate impact on

communities of color (Lee et al. 2015; Alexander 2010; Clear 2007; Pettit and Western

2004) and its adverse effects on affected families and communities (Wakefield, Lee, and

Wildeman 2016; Lee et al. 2014, 2015; Sykes and Pettit 2014; Wakefield and Wildeman

2013; Wildeman and Western 2010; Clear 2007; Comfort 2007; Western 2006), are of

great sociological significance. Penal expansion affects not only the incarcerated but also

those who are stopped, frisked, arrested, fined, and surveilled (Harris 2016; Greenberg,

Meredith and Morse 2016; Sewell, Jefferson, and Lee 2016; Stuart, Amenta, and

Osborne 2015; Napatoff 2015; Brayne 2014; Kohler-Hausmann 2013; Beckett and

Harris 2011; Rios 2011; Harris, Evans, and Beckett 2010). Studies also indicate that

mass incarceration has had far-reaching demographic, political, and sociological effects

that tend to enhance—and mask—racial and socioeconomic inequalities (Wakefield,

Lee, and Wildeman 2016; Lee et al. 2014; Travis, Western, and Redburn 2014; Pettit

2012; Western 2006, 2012; Harris, Evans, and Beckett 2010; Pettit and Western 2004;

Western and Beckett 1999).

Although the policies, practices, and discourses that fueled mass incarceration

enjoyed decades of widespread support,

1

the situation has changed notably in recent

years. US incarceration rates have declined modestly since 2007, and at least forty-eight

states and the District of Columbia have undertaken some type of criminal justice

reform aimed at reducing incarceration (Subramania and Moreno 2014). A notable shift

in public discourse has also occurred (Beckett, Reosti, and Knaphus 2016; Opportunity

Agenda 2014). These developments are partly the result of the mobilization of conserva-

tive critics of mass incarceration who “tied what had been a handful of scattered state-

level reforms into a broader narrative that cast decarceration as a matter of conservative

principle, then marshaled their political networks to spread the message, and plotted

strategic initiatives at the state and federal levels to bring around potential allies”

(Dagan and Teles 2014, 270; see also Dagan and Teles 2016).

Despite these important political and cultural shifts, as well as plummeting crime

rates, the imprisonment rate had fallen by just 11 percent by 2016, and the United States

remains the world’s leading jailer (Wagner and Walsh 2016). In fact, from 2007 to 2016,

the index crime rate fell more than twice as much as the imprisonment rate (24.3 vs. 11.1

percent).

2

In this context, analysts have offered various interpretations of the nature—

and persistence—of “late” mass incarceration. Drawing on theories of path dependence,

some scholars emphasize the importance of new or expanded interest and professional

groups that benefit economically or politically from mass incarceration and the ways in

which these groups exercise their political influence to maintain the penal status quo

(Gottshalk 2015; Thorpe 2015; Page 2011). On the other hand, Seeds (2016) and others

(Beckett, Reosti, and Knaphus 2016) highlight the recent emergence of a new way of

thinking and talking about crime, one that sharply differentiates nonviolent from violent

offenses. Seeds (2016) argues that this bifurcation is a defining feature of “late mass

incarceration,” one that explains why many states enacted or broadened statutes that

allow for life-without-the-possibility-of-parole sentences even as they scaled back penal-

ties for nonviolent crimes.

Although these interpretations differ, both focus on sentencing law as the primary

measure of penal change. By contrast, sociolegal scholars emphasize that formal law’s

institutional effects are powerfully shaped by the “street-level bureaucrats” who shape

law’s meaning and effects though their everyday decision making (Ulmer and Johnson

2017; Lynch 1998, 2016; Verma 2016; Lynch and Omori 2014; Bushway and Forst 2013;

Halliday et al. 2009; Johnson, Ulmer, and Kramer 2008; Maynard-Moody and

Musheno 2003; Silbey and Sarat 1987; Lipsky 1980). Sociolegal scholarship thus

©2018 The Authors

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322 LAW & POLICY October 2018