Families and the Moral Economy of Incarceration

This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa\u27s story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system\u27s response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a default response to social disorder. Once we begin attending to the accounts of people directly affected by criminal sanctions, however, we can begin to understand how our policies have exacerbated the very social problems they were intended to remedy. By holding offenders unaccountable to their families and communities, incarceration, at least as it is currently practiced, frustrates the fundamental norms of reciprocity that form the basis of social order itself

Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America

The vast majority of Americans favor sanctions that require offenders to engage in responsible behavior - to work, pay restitution, or support dependents; to participate in a mandatory job training, literacy, or drug treatment program; or to meet some other prosocial obligation. While this intuitive preference crosses political and ideological divides, nothing in our classical theories of punishment properly accounts for or develops this intuition. In this Article, Donald Braman explores the popular preference for and the benefits that attach to these accountability-reinforcing sanctions. Reviewing existing and original ethnographic, interview, and survey data, he describes why these sanctions have such broad appeal, and he advances a theory that suggests a number of benefits that are generally ignored when evaluating sanctions in terms of deterrence and rehabilitation. He concludes by reviewing and suggesting ways to reform existing punishment practices in light of accountability concerns

Criminal Law and the Pursuit of Equality

This Article argues that, to make their vision of justice a reality, egalitarians need to change both their focus and their tactics with respect to criminal law. The tragedy of contemporary criminal justice is not that individual rights are too narrowly construed, but that those living in disadvantaged communities are injured both by crime and counter-productive law enforcement. The remedies that egalitarians have historically looked to - remedies articulated within the framework of individual rights - are poorly suited to address the systematic reproduction of inequality that results. First, egalitarians will need to shift their focus from the racially motivated harms directed at individual criminal offenders and defendants to the collateral and often unintentional harms borne by non-criminals in their communities. Second, as a matter of pragmatic reform, egalitarians should shift their focus from the doctrine of individual liberties to more modest policy reforms aimed at increasing the influence that citizens in disadvantaged communities exercise over the form of justice itself. For too long, these communities have been asked to choose between expansive readings of criminal rights or oppressively harsh criminal sanctions - either choice making them a party to their own subordination. As a remedy, I argue for an approach coordinated across the political branches, an approach that seeks to make both criminals and the criminal justice system more responsive to the practical concerns of the citizenry. I review empirical data indicating that the public is eager for reforms that do both, and I outline a modest reform to leverage this popular preference, a form of jury polling that elicits greater information about the popular preferences as a regular part of criminal jury trials. This kind of reform, I argue systematically (and respectfully) elicits greater information about and draws attention to the complex needs of those living in our nation\u27s most vulnerable neighborhoods

Families and the Moral Economy of Incarceration

This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa\u27s story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system\u27s response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a default response to social disorder. Once we begin attending to the accounts of people directly affected by criminal sanctions, however, we can begin to understand how our policies have exacerbated the very social problems they were intended to remedy. By holding offenders unaccountable to their families and communities, incarceration, at least as it is currently practiced, frustrates the fundamental norms of reciprocity that form the basis of social order itself

Judicial Backlash or Just Backlash? Evidence from a National Experiment

The question about whether there is a distinctive public reaction when the Supreme Court decides constitutional issues — the question of judicial backlash — permeates our discussions of constitutional law, yet we have little to no empirical research about how people think about this issue. To answer this question, we conducted an experiment before the midterm congressional elections in the fall of 2010. We hypothesized that people respond to an institution based on whether the institution is seen as supporting or threatening their cultural worldview. Half of study subjects were assigned to a condition in which a constitutional right to gay marriage was protected and the other half were assigned to a condition in which a constitutional right to carry a concealed weapon was protected (with half of each of these subject populations being told the Court decided the issue and half being told that Congress did). Our results support the hypothesis that the cultural valence of the decision by the Court or Congress triggered the institutional choice of subjects. The Court does polarize underlying opinions on the constitutional issue and voting preferences more than Congress does. Our results suggest complications for efforts to decide constitutional issues in a manner appealing to all Americans. Our results also suggest that the Court and Congress might be able aggressively to decide constitutional issues because the public has no fixed sense of their respective institutional roles. We conclude by discussing what our results mean for interested communities outside of government, including social movements and constitutional theorists

More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions

What motivates individuals to support or oppose the legal regulation of guns? What sorts of evidence or arguments are likely to promote a resolution of the gun control debate? Using the survey methods associated with the cultural theory of risk, we demonstrate that individuals’ positions on gun control derive from their cultural world views: individuals of an egalitarian or solidaristic orientation tend to support gun control, those of a hierarchical or individualist orientation to oppose it. Indeed, cultural orientations so defined are stronger predictors of individuals’ positions than is any other fact about them, including whether they are male or female, white or black, Southerners or Easterners, urbanites or country dwellers, conservatives or liberals. The role of culture in determining attitudes towards guns suggests that econometric analyses of the effect of gun control on violent crime are unlikely to have much impact. As they do when they are evaluating empirical evidence of environmental and other types of risks, individuals can be expected to credit or dismiss empirical evidence on “gun control risks” depending on whether it coheres or conflicts with their cultural values. Rather than focus on quantifying the impact of gun control laws on crime, then, academics and others who want to contribute to resolving the gun debate should dedicate themselves to constructing a new expressive idiom that will allow citizens to debate the cultural issues that divide them in an open and constructive way

Overcoming the Fear of Guns, the Fear of Gun Control, and the Fear of Cultural Politics: Constructing a Better Gun Debate

The question of how strictly to regulate firearms has convulsed the national polity for the better part of four decades, and in this article Donald Braman and Dan M. Kahan conclude that the best way to engender productive debate is to investigate deeper than the statistics and address the competing American social attitudes on guns themselves: guns symbolizing honor, human mastery over nature, and individual self-sufficiency on the one hand, and guns creating the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the well-being of strangers on the other. Braman and Kahan posit that purely instrumental arguments lack the power to persuade either side because they ignore what really motivates individuals to favor or oppose gun control—namely, their competing cultural worldviews and identities. They claim that the only meaningful gun control debate is one that explicitly addresses whether and how the underlying cultural visions at stake should be embodied by American law. Therefore, to improve the quality of the U.S. gun control debate and break its impasse, Braman and Kahan argue for the constructive of a new, culturally pluralistic vocabulary, which embraces the cultural meanings of public policy, rather than eliding or suppressing them

The Self-Defensive Cognition of Self-Defense

Why do certain self-defense cases - ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens - provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a subtler and more complex explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals\u27 perceptions of violent interactions between parties seen to be complying with or defying contested social norms. As a result, even individuals who are trying to decide such cases based on honest and politically impartial assessments of the facts polarize along cultural lines. The paper presents the results of an original empirical study (N = 1,600) that supports this hypothesis. It also explores the normative significance of this account of the origins of political conflict over self-defense cases and how such conflict can be mitigated