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Punishment’s Legal Templates: A Theory of Formal Penal Change (Law & Society Review, forthcoming)

The well-known gap between law on the books and law and action often casts doubt on the significance of changes to law on the books. For example, the rise and fall of penal technologies have long been considered significant indicators of penal change in socio-historical analyses of punishment. Recent research, however, has challenged the significance of apparently large-scale penal change of this kind. This article clarifies the significance of penal technologies’ rise and fall by offering an alternative account of formal penal change, introducing the analytical concept of “legal templates,” structural models of legal activity (e.g., punishment) available for authorization and replication across multiple jurisdictions. Analyzing punishment’s templates explains how new penal technologies can be important harbingers of change, even when they fail to revolutionize penal practice and are not caused by a widespread ideological shift. This article locates the significance of punishment’s legal templates in their constitutive power—their ability, over the long term, to shape cognitive-cultural expectations about what punishment is or should be. This power appears only when the template is widely adopted by a plurality of jurisdictions, thereby becoming institutionalized. Ultimately, these institutionalized templates define the scope of future punishment.

The Birth of the Penal Organization: Why Prisons Were Born to Fail (in The Legal Process and the Promise of Justice, an anthology to honor the work of Malcolm Feeley, ed. Jonathan Simon, Hadar Aviram and Rosann Greenspan, forthcoming)

This chapter applies the spirit, and some of the lessons, of Malcolm Feeley’s Court Reform on Trial to American prison history. Like courts, prisons are the subject of exaggerated claims and unrealistic expectations grounded in a fundamental misunderstanding of prisons’ nature and operation. The prison itself was a significant reform—one that repeatedly failed, only to be replaced, through reform, by a new iteration of itself. This paper examines the transition away from capital punishment—an informal, ad hoc, temporary ritual—toward prison—a formal, rational, semi-permanent organization. I argue that locating punishment inside an organization introduces a wide range of non-penal logics, goals, and problems, which compete with and ultimately displace formal penal goals (e.g., rehabilitation, deterrence). This process creates a context of inevitable failure that leads to the prison’s history of ongoing cycles of reform, much like those cycles of court reform Feeley analyzed. With this understanding in mind, we move away from the question, “Why do prisons fail?” and ask instead, “Why do we repeatedly expect prisons to succeed?”

Continuity in the Face of Penal Innovation: Revisiting the History of American Solitary Confinement (with Keramet Reiter, Law & Social Inquiry, forthcoming)

Solitary confinement has been a perennial tool of control in US prisons, despite its status as a repeatedly delegitimized practice. Although there have been significant changes in punishment over time, solitary confinement has remained, mostly at the margins and always as a response to past failures, part of an unending search for greater control over prisoners. This history raises the question of how a discredited penal technology can nevertheless persist. We locate the source of this persistence in prison administrators’ unflagging belief in solitary confinement as a last‐resort tool of control. To maintain this highly criticized practice, prison administrators strategically revise, but never abandon, discredited practices in response to antecedent legitimacy struggles. Using solitary confinement as a case study, we demonstrate how penal technologies that violate current sensibilities can survive, despite changing macro‐level social factors that otherwise explain penal change and practice, provided those technologies serve prison officials’ internal goals.

The Prehistory of Innovation: A Longer View of Penal Change (Punishment & Society, 2018)

New penal technologies, however innovative, rarely emerge fully formed, but we currently lack a theoretical appreciation of the lengthy, messy process by which penal innovations develop. Indeed, most studies of penal change focus on the conditions surrounding the emergence of a particularly successful innovation, a model of punishment whose widespread diffusion is indicative of significant change. This paper extends our analytical focus by examining the legacy of an innovation’s prehistory, the ideational period in which an idea is created at the margins of criminal justice before manifesting on a wider scale. This paper traces the history, and influence, of American uses of penal incarceration before Pennsylvania’s famous Walnut Street Prison, often referred to as the country’s first prison. This prehistory complicates the notion of innovation by identifying significant precursors. Ultimately, recognizing penal innovations’ prehistory challenges macro-level theories of penal change, which largely overlook those causes that significantly predate the “moment” of innovation.

Professionalizing Prisons: Primitive Professionalization and the Administrative Defense of Eastern State Penitentiary, 1829–1879 (Law & Social Inquiry, 2018)

This article describes the process of “primitive professionalization”—the efforts of a small set of actors to claim professional status before their field has professionalized. Using a case study of Eastern State Penitentiary (1829–1879), I examine the strategies by which one prison’s administrators claimed status as professionals—those whose command of a specialized knowledge grants authority within their domain. Eastern’s administrators deployed a series of evolving discursive strategies, aimed at establishing themselves as professionals long before more formal, field-wide efforts to professionalize criminal justice. These strategies allowed Eastern’s administrators to establish their professional status without traditional status markers of national networks, college degrees, or special training, which emerged later. Beyond illustrating a new pathway to professionalization, examining criminal justice professionalization at this early stage illuminates the early prison’s precarious position.

Fracturing the “Penal State”: State Actors and the Role of Conflict in  Penal Change (with Michelle Phelps, Theoretical Criminology, 2017)

The concept of a penal or carceral state has quickly become a staple in punishment and criminal justice literatures. However, the concept, which suffers from a proliferation of meanings and is frequently undefined, gives readers the impression that there is a single, unified, and actor-less state responsible for punishment. This contradicts the thrust of recent punishment literature, which emphasizes fragmentation, variegation, and constant conflict across the actors and institutions that shape penal policy and practice. Using a case study of late-century Michigan, this article develops an analytical approach that fractures the penal state. We demonstrate that the penal state represents a messy, often conflicted amalgamation of the various branches and actors in charge of punishment, who resist the aims and policies sought by their fellow state actors. Ultimately, we argue that fracture is itself a variable that scholars must measure empirically and incorporate into their accounts of penal change.

Resistance as Agency? Incorporating the Structural Determinants of Prisoner Behaviour (British Journal of Criminology, 2017)

Recent research in prison sociology has described prisoners’ resistance as an exercise of agency within restrictive settings. This study argues that the emphasis on agency has obscured the role of other factors that contribute to prisoner behaviour, including structure. Using an historical case study, I illustrate several ways in which prisoners’ friction and resistance are not only reactions against the prison regime, but are also enabled, constructed, and shaped by it. This study produces a two-dimensional framework that locates friction and resistance within a nexus of agency and structure. Incorporating structural determinants of prisoner behaviour, while recognizing the role of agency, allows a fuller, more accurate understanding of prisoner behaviour.

The Consequences of Prisoners’ Micro-Resistance (Law & Social Inquiry, 2017)

What are the consequences of micro-resistance to legality in the prison context? Using archival data from Philadelphia’s Eastern State Penitentiary (1829–1875), I examine the consequences of noncompliant prisoner behavior for the prisoners themselves and the prison regime. I suggest that prisoners’ noncompliance often entailed substantial costs to prisoners, particularly in comparison to the substantial benefits of complying with the prison regime. I also suggest that prisoner noncompliance did not have a single set of positive or negative consequences for the prison regime, but rather had variable significance because different actors used episodes of noncompliance for their own goals, supporting or criticizing the prison.

Penal Change as Penal Layering: A Case Study of Proto-Prison Adoption and Capital Punishment Reduction, 1785–1822 (Punishment & Society, 2016)

Recently, scholars have increasingly criticized descriptions of significant penal change as “ruptures”—sudden breaks with past practices, often replacing old technologies with new. This article promotes an alternative understanding of penal change as the layering of new penal technologies over old technologies to describe the complicated coexistence of old and new penal technologies following significant moments of change. This study demonstrates the layering process through a case study of the first major American penal reform: proto-prisons adopted between 1785 and 1822 are often described as the first great rupture in which long-term incarceration replaced capital punishment. Using the relationship between America’s emerging proto-prisons and declining death penalty, this article illustrates the complicated coexistence of penal reforms with older technologies. While proto-prisons emerged out of revulsion with capital punishment, many states adopted proto-prisons independently of their decisions to reduce capital offenses and most states retained relatively robust death penalties. Rather than a replacement or rupture, the emergence of proto-prisons represented an additional layer of punishment that partially displaced older technologies.

A Neo-Institutional Account of Prison Diffusion (Law & Society Review, 2015)

Interest in legal innovations, particularly in the criminal law realm, often centers on an innovation’s emergence, but not its subsequent diffusion. Typifying this trend, existing accounts of the prison’s historical roots persuasively explain the prison’s “birth” in Jacksonian-Era northern coastal cities, but not its subsequent rapid, widespread, and homogenous diffusion across a culturally, politically, and economically diverse terrain. Instead, this study offers a neo-institutional account of the prison’s diffusion, emphasizing the importance of national, field-level pressures rather than local, contextual factors. This study distinguishes between the prison’s innovation and early adoption, which can be explained by the need to replace earlier proto-prisons, and its subsequent adoption, particularly in the South and frontier states, which was driven by the desire to conform to increasingly widespread practices. This study further attributes the isomorphic nature of the diffusion to institutional pressures, including uncertainty surrounding the new technology, pseudo-professional penal reformers and their claims about competing models of confinement, and contingent historical factors that reinforced these institutional pressures. This study illustrates the importance of distinguishing between the motivations that initiate criminal law innovations and those that advance their diffusion.

Law and Society Article Prize (2016)

Resistance or Friction: Understanding the Significance of Prisoners’ Secondary Adjustments (Theoretical Criminology, 2015)

Scholars examining prisoners’ “secondary adjustments” have often emphasized prisoners’ “resistance” to the prison regime, particularly their agentic acts that frustrate the prison’s rules, goals, or functions. While these agency-centered accounts offer an important corrective to the understanding of prisons as totalizing institutions, they may go too far. I argue that scholars have overused (and misused) the term “resistance” to describe certain prisoner behaviors, creating both analytical and normative consequences. Instead, I suggest the concept of “friction” more accurately describes the reactive behaviors that occur when people find themselves in highly controlled environments.

Three Waves of American Penal Development, 1790-1920 (Punishment and Incarceration: A Global Perspective, 2014)

This chapter calls attention to penal regime shifts, emphasizing the importance of comparing different periods of prison development. In particular, it examines different instantiations of prison across time. I discuss three periods of prison development (1790-1810s, 1820-1860, 1865-1920), focusing on the nature of prison diffusion across the United States. Specifically, I discuss the homogeneity and diversity of prison forms in each period. I demonstrate that the first two periods were particularly homogenous, as most states that adopted prisons followed a single model, the Walnut Street Jail model (1790-1810s) and Auburn System (1820-1860). By contrast, the post-Civil War period experienced the emergence of women’s prisons, adult reformatories, and distinctively southern approaches to confinement. Using neo-institutional theory, I suggest this post-war proliferation of prison forms was only possible because the prison had become institutionalized in the penal landscape. Scholars rarely examine multiple shifts in penal regime together, reducing their ability to make comparative insights. This chapter juxtaposes three historical periods of prison development, thereby illustrating the diversity of the third period and improving extant understandings of prison evolution.

Outstanding Author Contribution, Emerald Literati Network Awards (2015)

The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London (Law & Society Review, 2012)

What were the consequences of penal transportation to the New World for eighteenth-century British criminal justice? Transportation has been described by scholars as either a replacement of the death penalty responsible for its decline, or a penal innovation responsible for punishing a multitude of people more severely than they would have been punished before. Using data from the Old Bailey Sessions Papers and the Parliamentary Papers, this study examines sentencing and execution trends in eighteenth-century London. It takes advantage of the natural experiment provided by the passage of the 1718 Transportation Act that made transportation available as a penal sentence, thus enabling one to assess the “effect” of transportation on penal trends. This study finds that the primary consequence of the adoption of transportation was to make the criminal justice net more dense by subjecting people to a more intense punishment. While it was also associated with a small decline in capital sentences for some types of offenders, the adoption of transportation was also associated with an increase in the rate at which condemned inmates were executed. The study closes with a discussion of the conditions that may lead to law’s unintended consequences, including the mesh-thinning consequences observed here.

Honorable Mention, Law and Society Association Graduate Student Paper Prize (2013)

Punitive Penal Preferences and Support for Welfare: Applying the ‘Governance of Social Marginality’ Thesis to the Individual Level (Punishment & Society, 2011)

The individual has, until recently, been generally excluded from law and society explorations of the twin increases in penal and welfare punitiveness. However, public opinion enjoys an implicit role in policy change that is only now beginning to receive attention. This study explores the presence and nature of the correlation between attitudes toward welfare and penal policy at the individual level in general and across time. Using individual-level data from the General Social Survey (1972—2006), this study concludes that individuals’ punitiveness in penal policy preferences is well correlated with opposition to welfare spending, and that this relationship has persisted across time, though with significant variation. Moreover, we find that much of the correlation across time is due to cross-policy punitiveness, and that cross-policy welfarism is responsible for only a small (though growing since the late 1990s) portion of the correlation. We suggest that further research exploring this correlation may help us to understand the mechanism that links penal and welfare policy at the state level as well.

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