Introduction: What and How We Punish

James B. Jacobs Introduction: What and How We Punish T H E C U R R E N T IN C A R C E R A T IO N C R IS IS IN T H E U N IT E D STATES CAN BE profitably understood by exam ining what, how, and w hom we punish and w ith w hat consequences. This section deals w ith “ju st” the w hat and how. There is m uch to be asked and m uch to be said about what we punish. Can the current incarceration crisis be explained by the crimi­ nalization of m ore types of (mis)conduct than we punished in the past? Or is the contem porary mass incarceration predicam ent better explained by enhanced enforcem ent (arrest, conviction, sentencing) of conduct that has long been criminal? The proliferation of crim inal laws probably has contributed little to the punishm ent boom o f the past three decades. The vast m ajor­ ity of inm ates in our jails and prisons has been convicted of species of conduct that have long been regarded as properly criminal. In other words, the jails and prisons are full of detainees and inm ates convicted of old fam iliar crim inal offenses. However, new crim inal laws, espe­ cially federal crim inal laws, are created all the time: com puter hack­ ing, identity theft, gang loitering, aggravated assault based upon bias motive, and giving m aterial aid to terrorist organizations are just five examples. Clearly, Americans, consciously or unconsciously, see crimi­ nal law as the natural, appropriate, and effective response to injuri­ ous conduct of all sorts. Nevertheless, the criminal justice system itself seems slow to mobilize its enforcem ent m achineiy to routinely punish violators of new offenses. social research Voi 74 : No 2 : Summer 2007 349 We cannot assume that criminal law will rem ain constant. There is always a demand, frequently by pressure groups, to respond to more problems by criminalization. It is w orth recognizing that even w ith record num bers of people confined in jail and prison, there is still pent-up dem and for new crimi­ nal laws. In fact, future crim inalization or enhanced enforcem ent of previously ignored offenses m ight contribute new streams of jail and prison inm ates. Consider, for example, the penal consequences of routinely treating as crim inal any case o f medical m alpractice, auto­ m obile injury, infliction of em otional harm , and deceptive advertis­ ing. Suppose we regularly prosecuted assaults by one sibling against another or by parents against children? If I am correct th a t today’s m ass incarceration cannot be explained by a shift in w hat (mis)conduct we punish, then the expla­ nation of the massive increase in jail and prison population is greater enforcem ent (arrest, prosecution, sentencing) o f certain criminal laws that have long been on the books. For example, for a very long tim e physical violence by one spouse against another, while clearly prosecut­ able as assault, was generally ignored by law enforcem ent agencies. The w om en’s m ovem ent changed that. Today, domestic violence is taken m uch m ore seriously. The same is true of drunk driving, also the special interest of several organized lobbying groups. The best exam ple o f enhanced enforcem ent o f long-standing crimes is in the so-called drug war that has produced hundreds of thou­ sands of jail and prison inm ates. Indeed, m uch of the current incar­ ceration crisis is the consequence of the w ar on drugs. Tty this thought experim ent. Remove all drug offenders (possession, purchase, sale, importation) from the jails and prisons and consider how different the punishm ent scene would look. (More than 20 percent of state prison inm ates and m ore than 50 percent of federal prison inm ates are serving sentences for drug offenses.) Turning to how we punish focuses attention on sentencing jurisprudence and sentencing practice. There is an assum ption, well reflected in the papers in this issue, that sentencing theory holds deci­ 350 social research sive...