Guest post by Dr Netanel Dagan, a graduate from the Faculty of Law, Bar-Ilan University, Israel. Netanel is currently a visiting scholar at the Centre for Criminology, University of Oxford. His research focuses on penal theory, parole, and sentencing.
A judge declares a twenty-year prison sentence for a convicted violent offender. After the sentencing hearing, the offender is quickly taken away by the guards and sent directly to prison. Tomorrow’s paper headlines or TV news shows will probably open with this exciting story. The symbolic and powerful meaning of the sentencing stage will also likely attract a large amount of public attention and even political interest. However, in many cases, the sentencing stage is just the beginning of the story. The judge, as Robert Cover observes, never implements law’s ‘violence’ by him- or herself. Therefore, the judge’s words as s/he pronounces the sentence tell us (almost) nothing about the fundamental question: how will the punishment be implemented in action? A whole array of administrative bodies―prison officials, parole boards, and supervision authorities―are responsible for that task. Questions regarding the actual pain experienced during imprisonment, re-socialization, and re-entry back into the community, and the collateral effects of the conviction, are just a few of the important issues that arise in the post-sentencing arena. Such questions may be as important as those addressed in the criminal court, like the possibility of parole or prison conditions during a long period of imprisonment.
In recent years, what happens after the sentencing judge’s gavel falls has received increasingly more academic and policy-making attention. For instance, some scholars argue that parole holds a legal, normative, and theoretical meaning, including such general questions as to the importance of the ‘right to hope’ in relation to the possibility of parole in life sentences, the meaning of the principle of proportionality, or the concept of ‘finality’ in sentencing. Others argue that more attention should be dedicated to ‘back-end' sentencing mechanisms, such as parole revocation (returning a parolee back to prison for his or her failure to comply with the conditions of parole) and their impact. Others, such as Sharon Dolovich, criticize the fact that prison law, or the collateral effects of the criminal process (for example, criminal record, post-release supervision, etc.), are practically absent from the curricula of many law schools. In response, a growing body of empirical and theoretical research has been dedicated to improving our understanding the administration of punishment and the authorities that implement it.
It’s important, however, to consider the reasons underlying the long neglect (until recently) of academic research concerning the administration of criminal sentences and why it’s only recently that the issue has appeared on the academic agenda. In this post, I posit two reasons―a discussion that may teach us more about the intersection between law and criminology.
First, from a pragmatic perspective, and as others already have pointed out, the implementation of punishment is mainly carried out behind prison walls. Since it’s largely hidden from the public eye and sometimes done years after the offence was committed, it naturally attracts less public and academic attention. For instance, parole, as a post-conviction practice, has traditionally suffered from a lack of legitimacy, cynical attitudes, and relatively poor public opinion, seen by many as simply ‘time off’ or unprincipled leniency. Second, an additional explanation may relate to the blurred line between law and criminology, which results in the administration of punishment falling through the disciplinary cracks. Each discipline seems to neglect the post-sentencing questions for its own reasons.
Legal scholars, as Richard Bierschbach notes, appear to neglect the administration of punishment since they tend to view sentencing as a static act, the validity of which can be judged at the time of sentencing. In addition, lawyers are traditionally focused on the court and its function and less on other legal players, even when their importance is beyond question in terms of power. Lawyers may also view the post-sentencing arena as a primarily empirical/criminological question lacking broader normative or theoretical potential. The perception by many that the rehabilitative focus of post-sentencing authorities is ‘dangerously naïve,’ along with the rise of the management of ‘risky’ groups by actuarial means (as per the new penology thesis), may also partly explain the lack of legal attention, until recently, to the issue of punishment implementation.
Criminologists, on the other hand, are generally reluctant to engage in legal or normative discussions regarding the administration of punishment. As Lucia Zedner argues, considering itself as a scientific field standing beyond moral questions, criminology tends to focus on empirical questions regarding the sentencing process. Therefore, and in comparison to lawyers, normative questions―such as the tension between parole and the demand for retributive punishment or the intersection between sentencing and parole authorities―are generally overlooked. In addition, the complexity of prison or parole rules, the latter of which have been described by Nicola Padfield as ‘a nightmare to understand’ in the UK, may also explain the relatively low amount of attention paid to post-sentencing issues. Finally, the neglect may also relate to the decline in criminological interest about the prison experience during the 1980s during which the prison experience was understood as a neutral ‘deep freeze’ in which prisoners coped surprisingly well.
Today, the importance of the administration of the punishment is clear both for academic and policy-makers. As a result of the ‘punitive turn’ in the late 1970s, which favours punishment over rehabilitation, the prison population in Anglo-American jurisdictions has been skyrocketing. Such mass incarceration produces an array of difficult social, racial, political, and economic questions, which demand immediate answers. In addition, contemporary criminologists tend to be much less optimistic about the real effects of imprisonment which, when understood in a broad context, appear to be anything but a ‘deep freeze.’ As a result, during the past few years, post-sentencing decision-making has finally been given its place on the table. A growing body of research is examining the importance of the administration of the punishment, teaching us about the importance of ‘back end’ sentencing decisions to the prison overpopulation and to the success in the re-entry of ex-prisoners back into the community. Other theoretical research shows the possibility of post-sentencing authorities to serve more traditionally ‘judicial’ functions, such as communication or proportionality.
Lawyers must also pay attention to the implementation of punishment in order to fully understand the real meaning of the judicial responsibility to punish. As US Supreme Court Justice Antony Kennedy asserted:
When the prisoner is taken away, our attention turns to the next case. When the door is locked against the prisoner, we do not think about what is behind it… We have a greater responsibility, as a profession, and as a people, we should know what happens after the prisoner is taken away.
The renewed interest in the administration of punishment reveals interesting theoretical and normative landscapes. Such research improves understanding of what’s been described as the ‘hidden world of punishment’ and helps to increase its public accountability and legitimacy. No doubt, many important subjects, both in practice and theory, are to be explored further in the future.