Bifurcation Nation: Excluding to Include in Contemporary American Punishment

• In Event: 190 - Regular Session. Prisons and Prisoners 1

Abstract

The proliferation of prison downsizing initiatives and the expansion of life sentencing without the possibility of parole are two of the most prominent developments in contemporary American punishment. Current scholarship, however, has only just begun to explore these processes, and the trends are rarely analyzed together. By one conventional view, they are unrelated operations working at different ends of an ambivalent carceral spectrum; by another emergent perspective, decarceration of low level offenders marks a general shift away from mass incarceration that has yet to extend to serious offenders. Drawing on state legislative enactments, National Corrections Reporting Program statistics on state prison populations, and the discourse of decarceral initiatives in particular states, this paper presents a different thesis. The claim made here is that prison downsizing and expanding life sentencing work together, evincing a strategy of bifurcation in which penal law, policy and practice operate according to a pragmatic distinction between groups. Decarceral programs are enacted and implemented alongside promises, invitations or actual mandates of long-term sentencing for serious, violent, and especially sex offenders, often calling for imprisonment for natural life. While traditional policies used to regulate prison populations—executive pardon, parole release, goodtime credit, community treatment—have long authorized release to free up institutional space, this current practice does the opposite: today, decarceral innovations hinge on putting serious offenders away for longer. Call this practice ‘excluding to include’, a feature of the new American penal landscape.

Author

• Christopher Seeds, New York University