INTRODUCTION
Since 2013, police (and neighborhood watch) shootings of Black people have given rise to a movement that is reshaping Americans' beliefs about the role of policing in society and the dramatic growth of incarceration as key dimensions of racial inequality. Trayvon Martin, shot by a neighborhood watch member who was later acquitted; Michael Brown, shot by a police officer in Ferguson, MO; and Kalief Browder, who died by suicide after years in Rikers Island awaiting trial, all became visible symbols of the racialized toll of the criminal legal system. More recently, in May 2020, the murder of a Minneapolis man, George Floyd, by a police officer who kneeled on Floyd's neck for nine minutes reignited the emerging world-wide movement against systemic, anti-Black racism.
These cases are only some of the most egregious manifestations of the operation of the criminal legal system in America. The expansion of incarceration during the end of the 20th century reshaped American society. At its peak in 2009, over 1 in 100 American adults were imprisoned, and incarceration was even more common for Black and Latinx people, especially young men (Ghandoosh Reference Ghandoosh2019; Pew Trusts 2008). Incarceration and arrest became central life course events for race-class subjugated (RCS) people (Soss and Weaver Reference Soss and Weaver2017; Western Reference Western2006), damaging communities and civic involvement (Burch Reference Burch2013; Lerman and Weaver Reference Lerman and Weaver2014a). This massive expansion of criminalization, arrest, and incarceration developed from the redirected efforts of anti-civil rights groups, who helped promote a durable association between Black activism and crime (Weaver Reference Weaver2007). It also formulated a partisan race to appear tough on crime, which persisted through the early part of the 21st century (Eckhouse Reference Eckhouse2019; Frymer Reference Frymer2010; Hinton Reference Hinton2016). The consequences of this alliance include the proliferation of policies criminalizing behaviors that stem from poverty and poor mental and physical health; steadily growing law enforcement budgets; and the dramatic expansion of prison capacity, the dense archipelago of which constitutes an enduring shift in American politics (Gottschalk Reference Gottschalk2006; Reference Gottschalk2008; Reference Gottschalk2014).
The criminal legal system comprises all of the institutions responsible for policing and punishing crime throughout the country, including: law enforcement agencies, such as police and sheriff's departments and federal crime investigation and immigration enforcement; court systems; and jails, prisons, and immigrant detention centers. The carceral state refers to the totality of the policies that surveil individuals far beyond the physical walls of the prison, across issue areas and levels of government, where the vast majority of said policies are devised and implemented at the state and local level (Gottschalk Reference Gottschalk2008). The carceral state does not only refer to the pervasive nature of American penal policy in every aspect of an individual's life. It also refers to the racially and spatially concentrated nature of American criminal justice, whereby law enforcement, and thus punishment, are targeted to RCS communities (Weaver and Lerman Reference Weaver and Lerman2010; Soss and Weaver Reference Soss and Weaver2017). Custodial citizens are people subject to surveillance, and thus truncated substantive citizenship, as a consequence of involuntary encounters with the carceral state (Weaver and Lerman Reference Weaver and Lerman2010).
Understanding the operation of the American criminal legal system has traditionally been the purview of historians, sociologists, and criminologists. In recent years, political scientists have introduced new questions left largely unanswered by other disciplines, focused on how the criminal legal system shapes individuals' relationship with the state. For example: how do seemingly race-neutral policing practices drive racial inequalities? What role do interbranch relations play in criminalizing immigration? How does descriptive representation, especially at the state and local level, affect criminal legal outcomes? Perhaps one of the most important contributions from political science scholarship on crime and punishment in the 21st century is the identification of the criminal legal system as many individuals' initial and primary form of contact with the state, which has enormous consequences for their political development (Soss and Weaver Reference Soss and Weaver2017; Weaver and Lerman Reference Weaver and Lerman2010). The articles included in this special issue, therefore, address both behavioral and institutional concerns related to the criminal legal system.
This essay explores four key dimensions of political science literature on the U.S. criminal legal system, and situates the papers included in this issue within those themes. First, we discuss how the findings from the existing scholarship characterize the police as an institution of social control, rather than providing safety for people vulnerable to crime—specifically those who are poor and non-White. Instead, many Black and Latinx people live under near-constant surveillance from law enforcement without the benefits of police protection when needed (Weaver et al. Reference Weaver, Prowse and Piston2020). Scholars have likewise identified the extractive nature of policing as local governments often use revenues from police-issued fines and fees to fund local budgets (Goldstein, Sances, and You Reference Goldstein, Sances and You2020; Harris et al. Reference Harris, Ash and Fagan2020). The vast array of policy tools to surveil, track, and detain citizens, which lack commensurate restraints on their application, amount to a finely tuned carceral machine that can be deployed against groups newly identified as deviant. We therefore turn attention to this dynamic with our second theme: the criminalization of immigrants, the expansion of interior immigration enforcement, and the consequent targeting of Latinx people (Walker et al. Reference Walker, Roman and Barreto2020; Maltby et al. Reference Maltby, Rocha, Jones and Vannette2020).
A third contribution of political scientists is particularly well suited to make concerns the role of descriptive representation in criminal legal outcomes. Calls to hire more Black police officers in the mid-20th century to address racial inequality yielded mixed results (Forman Reference Forman2017). However, scholars have since shown that representation, especially in legislative bodies, can affect criminal legal outcomes, including decreasing inequality and state reliance on prisons (Reference EckhouseEckhouse N.d. a; Gunderson Reference Gunderson2020). Finally, we turn our attention to the novel ways in which political scientists incorporate the voices of the policed into their analyses of the politics of the carceral state to provide a more complete view of how the system shapes lives (Weaver et al. Reference Weaver, Prowse and Piston2020). In this present political moment, fraught with demands to reform the system or abolish it altogether, examining the efficacy of democratic channels to ameliorate state harm and centering the voices of RCS people illuminates the path forward for activists, advocates, and policymakers.
The articles in this special issue likewise make methodological contributions. A number of papers move beyond the initial focus on surveys to include novel analyses of exciting administrative datasets. Analyses leveraging administrative data expand the scope of inquiry to develop insight from the likes of traffic stop and local government finance data. Yet, emerging research also highlights methodological challenges: administrative records are embedded with their own set of biases for which researchers have not fully accounted (Knox et al. Reference Knox and Mummolo2020a; Reference Knox, Lowe and Mummolo2020b). Other work in this issue uses a novel method to incorporate the voices of the policed in such a way that it avoids researcher-induced biases. Measurement of the political causes and consequences of the American carceral state remains fraught in a policy area characterized by notoriously bad and inaccessible data.
This essay begins by reviewing research on policing as an extractive form of social control, and, then, exploring its application to the regulation of immigrants. Next, we turn to the potential for descriptive and substantive representation to reduce the carceral state's harms, and follow that with a discussion of how members of RCS communities, themselves, understand policing. We conclude with a brief discussion of directions for future research. These include complicating what we know about the experiences of RCS communities through attention to intersecting identities; understanding shifting attitudes towards crime and punishment in the era of Black Lives Matter; and understanding the conditions under which the growing movement for reform can effectively challenge state power. Contemporary political developments vividly illustrate that we cannot understand how power works in American politics without centering questions of race (Eckhouse Reference Eckhouse2018; Soss and Weaver Reference Soss and Weaver2017; Taylor Reference Taylor2018). The criminal legal system is a key force for persistent racial and class inequality. By turning attention to the politics of the criminal legal system, we forward a critical and understudied facet of American political life that intersects with all corners of the discipline.
POLICE PROVIDE SOCIAL CONTROL
Departing from a traditional focus on policing as a bureaucratic case study, criminal legal scholars in political science have reframed policing as primarily geared towards social control. Considering policing from this perspective stems from the recognition that police are the primary face of government with which RCS people interact, and through which they come to learn about their position in society (Soss and Weaver Reference Soss and Weaver2017). Unlike previous studies about how policing impacts citizen attitudes, this new turn in the discipline positions citizens as democratic agents rather than as (un)compliant subjects.
For example, Weaver et al. (Reference Weaver, Prowse and Piston2020) examine how members of RCS communities understand the government through the pervasive presence of police in their lives and do so through conversations captured by The Portals Project. The Portals Project is described as, “technology and civic infrastructure… and a methodological approach that listens to political ideas, aspirations, commitments, and ideologies in order to build a ground-up conception of political life,” and builds this conception without the interference of an interviewer (Weaver et al. this volume, 2). From these conversations, we learn that it is common for RCS people to lack access to police assistance in moments of true need, even as they are constantly surveilled as they go about their daily lives. Examples of this constant surveillance include higher traffic stop and search rates among non-White drivers when compared to White drivers (e.g. Baumgartner, Epp, and Shoub Reference Baumgartner, Epp and Shoub2018; Harris et al. Reference Harris, Ash and Fagan2020; Shoub et al. Reference Shoub, Epp, Baumgartner, Christiani and Roach2020) and the prevalence of Terry stops in neighborhoods with large non-White populations (Fagan et al. Reference Fagan, Geller, Davies, West, Rice and White2010; Soss and Weaver Reference Soss and Weaver2017).
There are real consequences to the constant surveillance that non-White people face. As Shoub et al. (Reference Shoub, Epp, Baumgartner, Christiani and Roach2020) show, Black male and Latinx drivers are both more likely to experience a search than are White male drivers, with Black male drivers being searched two to three times more frequently than White male drivers. This study builds on a long line of social science literature identifying racial disparities in traffic stop outcomes (e.g. Baumgartner, Epp, and Shoub Reference Baumgartner, Epp and Shoub2018; Grogger and Ridgeway Reference Grogger and Ridgeway2006; Harris et al. Reference Harris, Ash and Fagan2020; Knowles, Persico, and Todd Reference Knowles, Persico and Todd2001; Pierson et al. Reference Pierson, Simoiu, Overgoor, Corbett-Davies, Jenson, Shoemaker, Ramachandran, Barghouty, Phillips, Shroff and Goel2020; Rojek, Rosenfeld, and Decker Reference Rojek, Rosenfeld and Decker2004; Shoub et al. Reference Shoub, Epp, Baumgartner, Christiani and Roach2020; Soss and Weaver Reference Soss and Weaver2017). Shoub et al. (Reference Shoub, Epp, Baumgartner, Christiani and Roach2020) contribute to this line of work by making use of a large database of administrative records from two different states and showing that these disparities persist even when accounting for a variety of contextual and institutional factors.
The over-policing of poor and non-White people is an extractive exercise, where local governments use fines and fees—common throughout the criminal legal system, including policing and the courts—to fund their budgets, sometimes at the expense of public safety (Investigation of the Ferguson Police Department 2015; Goldstein et al. Reference Goldstein, Sances and You2020; Harris et al. Reference Harris, Ash and Fagan2020). Perhaps the best-known recent example comes from evidence unearthed in the Department of Justice report on Ferguson, MO. The Ferguson Report found that the police department in Ferguson, as well as those in other nearby municipalities, relied on revenues from police fines to sustain the departments and fund officer salaries and raises (Investigation of the Ferguson Police Department 2015). Thus, in addition to subjecting residents of poor and non-White communities to increased surveillance, policing also serves the purpose of regressively taxing these communities through resource extraction.
Harris et al. (Reference Harris, Ash and Fagan2020) consider how racially disparate policing and the use of fees and fines to address budget shortfalls interact. Using administrative records on policing and budget shortfalls from MO, the authors find racial disparities in traffic stop outcomes, on the one hand, and that traffic stops increase when municipalities experience budgetary shortfalls, on the other hand (Garrett and Wagner Reference Garrett and Wagner2009; Sobol Reference Sobol2015). However, budgetary distress appears to increase the ticketing of White, rather than non-White drivers. Crucially, the authors show that while stops of White drivers go up, stops of Black drivers do not decline, which may indicate that police increasingly stop White drivers because they have already exhausted stops of Black drivers. Moreover, the authors posit and show some evidence to support that the increase in stops of White drivers could be due to the perception that they will be better able to pay related fines than Black drivers (Harris et al. Reference Harris, Ash and Fagan2020).
This growing body of work by political scientists centralizes the notion that the heavy policing of marginalized communities is about surveilling some communities in order to protect a specific social order, rather than to protect residents of the policed communities. This raises important questions about possibilities for police reform, to which an emerging line of inquiry has turned attention. Employing a novel field experiment, Peyton, Sierra-Arévalo, and Rand (Reference Peyton, Sierra-Arévalo and Rand2019) find that when police engage community members, this can improve trust. Likewise, Mummolo (Reference Mummolo2018a) finds that when officers in NY City were told they would have to thoroughly defend stops made of citizens, superfluous stops went down, and elsewhere that militarized policing practices do not yield public safety gains (Mummolo Reference Mummolo2018b).
While these findings are encouraging, they belie an underlying function served by police, highlighted here, which is to maintain social, and especially racial, order. This is concerning from a normative democratic perspective. Activists in the current political moment call for more dramatic change, given the profound impact policing has on RCS communities. These impacts are especially apparent when considering the application of policing approaches to immigration. It is to this emerging area of research in political science that we now turn.
DEPLOYING CARCERAL TECHNOLOGY TO REGULATE IMMIGRANTS
Legal scholars have used the term crimmigration to refer to the convergence of criminal and immigration policy (Arriega Reference Arriaga2016; Beckett and Evans Reference Beckett and Evans2015; Stumpf Reference Stumpf2006). While a substantial body of research in sociology and law has examined this phenomenon, political scientists are just beginning to develop work around the intersection of the enforcement of immigration and criminal legal policy. Like research focused on the raced and classed aspects of policing, the role of the criminalization of immigrants in promoting the racialization of Latinx people motivates much of this work, where scholars write that, “structural racism is part and parcel of the process of criminalizing immigrants,” (Brown, Jones, and Becker Reference Brown, Jones and Becker2018; Garip, Gleeson, and Hall Reference Garip, Gleeson and Hall2019, 1,161).
The web of policies criminalizing immigrants without authorization is thick, but the institutional nexus for these two bodies of law is the conscription of local criminal legal administration in immigration enforcement (Armenta Reference Armenta2017; Coleman and Kocher Reference Coleman and Kocher2019; Moinster Reference Moinester2019). Focusing on the expansion of immigration enforcement into the country's interior highlights that police are integral to reinforcing substantive lines of citizenship that extend beyond formal legal boundaries. Collaborative programs like 287(g) and Secure Communities have facilitated the unprecedented expansion of interior enforcement activities (Armenta Reference Armenta2017; Meissner et al. Reference Meissner, Kerwin, Chishti and Bergeron2013); the removal of unauthorized people without other criminal convictions (Capps et al. Reference Capps, Chishti, Gelatt, Bolter and Ruiz Soto2018); and the widespread targeting of Latinx people irrespective of legal status (Armenta Reference Armenta2017; Epp, Maynard-Moody, and Haider-Markel Reference Epp, Maynard-Moody and Haider-Markel2014).
There are two primary mechanisms by which collaborative programs achieve these ends (Nguyen and Gill Reference Nguyen and Gill2016; Pedroza Reference Pedroza2019). The first is formal collaborative relationships with immigration enforcement. For example, Secure Communities is a database sharing program whereby individuals checked into jails can have their fingerprints submitted to Immigration and Customs Enforcement (ICE), and local law enforcement has discretion with respect to whether they submit detainees' fingerprints (Meissner et al. Reference Meissner, Kerwin, Chishti and Bergeron2013). 287(g) provides more extensive training for law enforcement to carry out immigration proceedings (Meissner et al. Reference Meissner, Kerwin, Chishti and Bergeron2013). However, Armenta and Alvarez note that an exclusive focus on formal partnerships between law enforcement and federal immigration authorities obscures the “range of practices that contribute to immigrants’ deportation,” (Reference Armenta and Alvarez2017, 2). Thus, practices that fall outside the directives of federal immigration enforcement authorities but are routine aspects of day-to-day policing are the second mechanism by which Latinx people are broadly targeted. Pretextual traffic stops, which allow officers to check for a valid driver's license, are central this story, and driving without a valid license is a criminal offense that can trigger immigration proceedings (Nguyen and Gill Reference Nguyen and Gill2016).
Policies and practices laden with ethnic, racial, and class biases likewise produce racially and ethnically disparate outcomes. Research suggests that, as in other areas of enforcement, officers view themselves as unbiased administrators, without recognizing that “policing, as a practice, does not simply draw on pre-established racialized tropes” connecting Black and Latinx people to criminality, but “actively constitutes this questionable connection on an ongoing performative basis,” (Coleman and Kocher Reference Coleman and Kocher2019, 1,187). Emerging research among political scientists complicates this assessment of enforcement officers with explorations of the more complicated identity negotiation that occurs for Latinx immigration enforcement agents (Cortez Reference Cortez2017). Nevertheless, many officers' belief in their own objectivity together with the use of physical identifiers of potential criminality that are bound up with ethnicity renders coded enforcement practices facially neutral (Armenta Reference Armenta2012, Reference Armenta2017).
Scholars additionally turn attention to Latinx people themselves, and the extant impact of targeted policing practices on political attitudes and behavior (Cruz-Nichols et al. Reference Cruz Nichols, LeBrón and Pedraza2018; Rocha, Knoll, and Wrinkle Reference Rocha, Knoll and Wrinkle2015). Leveraging administrative data that tracks local law enforcement fingerprint submissions to ICE, ICE detainers, and subsequent removals, researchers demonstrate that heightened immigration enforcement by local police degrades broader cooperation with law enforcement and the likelihood of reporting a crime (Menjívar et al. Reference Menjívar, Simmons, Alvord and Valdez2018; Nguyen and Gill Reference Nguyen and Gill2016; Pedraza and Osorio Reference Pedraza and Osorio2017); frays mental and physical health (Cruz-Nichols et al. Reference Cruz Nichols, LeBrón and Pedraza2018); erodes trust in government and external efficacy (Rocha, Knoll, and Wrinkle Reference Rocha, Knoll and Wrinkle2015); and, by the same token, leads individuals to become less likely to engage with other types of institutions, like schools and healthcare providers (Pedraza and Osorio Reference Pedraza and Osorio2017; Pedraza, Cruz Nichols, and LeBrón Reference Pedraza, Cruz Nichols and LeBrón2017).
At the same time, however, researchers demonstrate that policy that deeply harms Latinx communities can spur political action. White (Reference White2016) demonstrates heightened voter turnout among Latinx people whose communities entered into formal partnerships with federal immigration enforcement. Likewise, having a loved one who is threatened by detention or deportation can promote participation in civic organizations and the likelihood of protesting (Street, Jones-Correa, and Zepeda-Millán Reference Street, Jones-Correa and Zepeda-Millán2017; Walker et al. this volume). A threatening immigration environment heightens perceived discrimination experienced by Latinx people across generations and citizenship status (Flores Reference Flores2014; Marrow Reference Marrow2020; Rocha, Knoll, and Wrinkle Reference Rocha, Knoll and Wrinkle2015). Punitive enforcement policies also contribute to a sense of linked fate among Latinx people, particularly citizens (Vargas, Sanchez, and Valdez Reference Vargas, Sanchez and Valdez2017). These studies suggest that Latinx people actively decode facially neutral enforcement practices and read them as targeted to them on the basis of ethnicity, which, in turn, yields a politicized group consciousness.
Moreover, researchers highlight that there are practical reasons for unauthorized people and their loved ones to avoid engaging public institutions (Brayne Reference Brayne2014; Pedraza, Cruz Nichols, and LeBrón Reference Pedraza, Cruz Nichols and LeBrón2017). That is, they run the risk of exposing their own status or the status of a loved one to the government (Pedraza and Osorio Reference Pedraza and Osorio2017). Scholars refer to this dynamic, whereby individuals may withdraw from public institutions even as they politically engage, as institutional avoidance (Brayne Reference Brayne2014). As a mechanism explaining diminished engagement with public life, institutional avoidance leaves political agency and interest intact while also recognizing the powerful material and civic consequences of the criminalization of immigrants. Maltby et al. (Reference Maltby, Rocha, Jones and Vannette2020) develop this theoretical thread by examining the impact of punitive immigration enforcement on a politicized racial identity among Latinx people. They find that living among other Latinxs in a context where immigration enforcement is particularly severe heightens ethnic linked fate for native-born Latinx people. Walker et al. (this volume) compliment this important work to demonstrate the politicizing effect of having a loved one threatened with detention and deportation, which foments protest behavior and, importantly, extends across racial groups.
In sum, turning attention to the intersection of immigration and the criminal legal system highlights that the technology by which collaborative programs target ethnic minorities in widespread fashion is similar to other areas of policing. The police are deployed to garner revenue (Harris et al. this volume) as a means of regulating the lives of the poor and Black (Weaver et al. this volume; Shaub et al. this volume), and, likewise, the lives of Latinx people and immigrants. Carceral technology is an efficient deployment of state power to regulate, corral, and control the freedom of movement of groups identified as undesirable or threats to the public order (Gottschalk Reference Gottschalk2014).
THE IMPACT OF DESCRIPTIVE REPRESENTATION ON CRIMINAL LEGAL OUTCOMES
Carceral institutions alter political representation by disenfranchising RCS communities both formally (Manza and Uggen Reference Manza and Uggen2008) and informally (Lerman and Weaver Reference Lerman and Weaver2014; Soss and Weaver Reference Soss and Weaver2017), as well as by shifting political participation to behaviors other than voting (Walker Reference Walker2020). While representation is a core concern for political scientists, scholars have historically overlooked the role that representation plays in shaping carceral outcomes. New work in this area, some of which this issue showcases, begins to remedy this oversight.
Pitkin (Reference Pitkin1967) describes representation as taking four primary forms: symbolic, institutional, descriptive, and substantive. Historically, parties are understood to play the central role in linking elected officials with their constituents and promoting substantive representation (Wessels Reference Wessels2007). And yet, partisan conflict often fails to explain outcomes in the carceral state (Hinton Reference Hinton2016; Murakawa Reference Murakawa2014; Weaver Reference Weaver2007). Black Democrats, in particular, are often poorly represented by their political party on issues of crime and punishment (Frymer Reference Frymer2010). Even when Black Americans are represented, demands for holistic crime policy inclusive of both heightened policing and investment in social welfare have historically yielded law-and-order reforms (Forman Reference Forman2017). Further, the politics of crime and punishment reshaped parties: when White segregationists, defeated on civil rights legislation, proactively developed a narrative describing a “durable connection between black activism and crime,” they made a tough-on-crime approach standard for conservatives and left liberals “sandwiched between two traps—being soft on crime and excusing riot-related violence” (Weaver Reference Weaver2007, 237).
Yet, at the same time, decades of research suggest that legislators' (and other officials') descriptive characteristics are related to their behavior in office. Work focused on how Black representatives legislate finds that they are responsive to Black constituents, directly and with respect to agenda setting (Butler and Broockman Reference Butler and Broockman2011; Grose Reference Grose2011). However, Black legislators' influence is tempered by political context (Preuhs Reference Preuhs2006). Thinking beyond the Black-White dichotomy, Preuhs (Reference Preuhs2005) finds that descriptive representation matters most when non-White legislators are in leadership positions. Black politicians encourage turnout among Black voters, and Black voters support descriptive representation (Dawson Reference Dawson2003; Griffin Reference Griffin2014; Griffin and Keane Reference Griffin and Keane2006; Hutchings and Valentino Reference Hutchings and Valentino2004). Recent work has also highlighted the importance of class representation, as national officeholders are disproportionately wealthy, and their policy decisions tend to benefit wealthier Americans (Carnes Reference Carnes2013).
As a result of the racially polarized nature of carceral politics and the large body of work identifying the importance of descriptive representation, researchers are turning the focus to the relationship between descriptive and substantive representation when it comes to criminal legal outcomes. For the most part, scholars find that—across the variety of institutions comprising and related to the criminal legal system—the incorporation of non-White, and especially Black, people into the criminal legal system, and state and local government, more broadly, yields improved outcomes for individuals most likely to have contact with the system.
For example, focusing on the extractive function of police, Sances and You (Reference Sances and You2017) find that, on the one hand, the extent to which municipalities rely on exploitative fines and fees for revenue depends on the size of the city's Black population. On the other hand, increases in Blacks' representation on city councils weaken the relationship between the relative size of the Black population and a city's use of exploitative fees and fines (Sances and You Reference Sances and You2017). Meanwhile, Eckhouse (Reference EckhouseN.d. a; Reference EckhouseN.d. b) finds that municipalities with city councils that are majority non-White have about half the racial disparity in minor arrests as do cities with majority White councils. Gunderson (this volume) examines the consequences of Black political incorporation for carceral spending, finding that Black state legislators reduce spending on imprisonment. Black mayors are more likely than their White counterparts to adopt civilian oversight and, also, to ensure that Black police officers are hired (Saltzstein Reference Saltzstein1989). In their analysis of six million traffic stops, Shoub et al. (Reference Shoub, Epp, Baumgartner, Christiani and Roach2020) find that stops are less frequently elevated to searches for agencies with a Black police chief. Black judicial representation is also important in criminal trial courts when it comes to case dispositions and sentencing (Reference HarrisHarris N.d.; Harris and Sen Reference Harris and Sen2019).
The research on representation makes clear the importance of focusing on state and local forms of governance. Subnational governments are the primary location for the administration of the majority of criminal legal activities, and state and local governments provide greater scope for descriptive representation than national legislatures (Reference EckhouseEckhouse N.d. a; Reference EckhouseN.d. b). Emerging work takes advantage of these features to document the greater capacity for descriptive representation to yield substantive representation with respect to carceral outcomes. This research finds that when Black voices are placed in positions of power, they have the potential to change policies in ways that reduce the harm law enforcement inflicts on the communities they police.
HOW MARGINALIZED PEOPLE VIEW THE CRIMINAL LEGAL SYSTEM
The carceral state is a central force for social control, the maintenance of race-class hierarchies, and a primary arbiter of who has access to substantive citizenship. This particular political moment carries tremendous capacity for transformative change. What does the existing literature tell us about what that change should look like? What kind of citizens do carceral politics make, and how can we chart a path forward? In many ways, the study of the criminal legal system in political science developed from this set of questions. In their pivotal work examining the extant consequences of experiences with the criminal legal system on participation, Weaver and Lerman (Reference Weaver and Lerman2010) pushed the discipline to think beyond the formal exclusion of people with felony convictions, demonstrating that even having been stopped and questioned by the police is associated with a nearly 10 percentage point decline in the likelihood of voting (Lerman and Weaver Reference Lerman and Weaver2014a). Researchers further demonstrated that these effects extend beyond custodial citizens themselves to entire communities (Burch Reference Burch2013; Lerman and Weaver Reference Lerman and Weaver2014b).
Researchers leverage administrative records of interactions that result from preemptive policing and associated tactics (Laniyonu Reference Laniyonu2018; Reference Laniyonu2019), state supervision rates at the block group level (Morris Reference Morris2020), and variation in local criminal legal racial disparities (Maltby Reference Maltby2017) to assess the political effects of living in a community with high levels of criminal legal intervention. Researchers have likewise tried to understand the civic consequences of officer-involved shootings, where responses to such incidents appear most vividly via protest, marked especially by the rise of the movement for Black lives (Cohen et al. Reference Cohen, Gunderson, Jackson, Zachary, Clark, Glynn and Owens2019; Williamson et al. Reference Williamson, Trump and Einstein2018). Research examining the civic consequences of having a relational connection to a custodial citizen finds that the policy feedback effects of contact identified by Lerman and Weaver (Reference Lerman and Weaver2014a) spill over to those who experience the system vicariously, albeit in sometimes unexpected ways (Anoll and Israel-Trummel Reference Anoll and Israel-Trummel2019; Mondak et al. Reference Mondak, Hurwitz, Peffley and Testa2017; Lee, Porter, and Comfort Reference Lee, Porter and Comfort2014; Walker Reference Walker2014; Reference Walker2020). While scholars largely draw on survey data to identify people with proximal criminal legal connections, the use of administrative records to identify these same people is one of the most exciting developments in this line of inquiry (White Reference White2018).
Yet, while much research confirms the capacity for the carceral state to erode political voice through declining trust (Maltby Reference Maltby2017) and diminished voting (Laniyonu Reference Laniyonu2019; Morris Reference Morris2020; White Reference White2019), revisiting the methods employed in extant studies, some researchers find a negligible relationship between incarceration and voting (Gerber et al. Reference Gerber, Huber, Meredith, Biggers and Hendry2017). Still, others find that exposure can be mobilizing, especially when contact is vicarious and in reference to protesting (Anoll and Israel-Trummel Reference Anoll and Israel-Trummel2019; Laniyonu Reference Laniyonu2018; Walker Reference Walker2014; Reference Walker2020; Walker et al. this volume; White 2016; Williamson et al. Reference Williamson, Trump and Einstein2018). Walker (Reference Walker2020) leverages the political threat framework to make sense of these seemingly divergent findings. In Walker's account, declining trust in government and institutional avoidance, of the sort central to crimmigration, pushes people away from engaging with formal politics, even as it creates a reason for individuals to organize to create change for themselves and their communities.
Weaver et al. (this volume) take a more comprehensive look at the civic lessons members of RCS communities learn at the hands of the system. The authors characterize the impact of criminal legal encounters on attitudes as “constructive of political thought and action,” (pg. 2, this volume), writing that much recent work by political scientists has, “constructed custodial citizens” politics as an anti-politics—a unilateral withdrawal from political activity—even as communities across the nation have told us otherwise,” (pg. 6, this volume). Indeed, Weaver et al. (this volume) address a gap in the literature which has been exacerbated by the disciplines' race to sharpen causal design and sanitize measurement of various biases—how RCS people themselves view their own citizenship, given their relationship to police.
Conversations from The Portals Project admonish researchers to rethink how they view marginalized people, who are too often characterized as politically unwitting passive subjects of the state. Members of over-policed communities understand that they are both over-policed and under-protected (Prowse, Weaver, and Meares Reference Prowse, Weaver and Meares2019). The knowledge held by RCS communities accrues through interactions with police, which convey dissonance between how the law should function and how it functions in reality (Weaver, Prowse, and Piston Reference Weaver, Prowse and Piston2019). This specific knowledge leads people to articulate demands for a radical “revision of the state as operating in antidemocratic ways as a matter of unofficial policy in their neighborhoods,” (Weaver, Prowse, and Piston Reference Weaver, Prowse and Piston2019, 1164). Finally, the article featured in this volume highlights that the political consciousness held by members of RCS communities directs them towards withdrawing from the state and investing in developing autonomy within their communities (Weaver et al. this volume).
In sum, the extant knowledge around the political consequences of the carceral state has blossomed around the basic question: how do people make sense of their experiences with the criminal legal system? The lessons people learn are varied, and while nascent, the seeds of a collective carceral consciousness are widely dispersed. From a scholarly perspective, lessons from The Portals Project put a finer point on how we understand a political consciousness derived from carceral experiences, and suggest a drawing inward and away from the state. Maltby et al. (Reference Maltby, Rocha, Jones and Vannette2020) suggest that these dynamics carry over to members of predominantly immigrant communities, who are likewise facing increased police scrutiny through expansive interior enforcement practices. Policymakers and advocates should heed these lessons. No one is more knowledgeable about how the police function in practice than the policed themselves. Listening carefully to members of RCS communities for information about how to address carceral dysfunction brings clarity: turn away from criminalization and invest in developing the vitality of communities currently subjugated by race, class, and ethnicity.
CONCLUSION
We have used this introductory article as an opportunity to describe the carceral state as the relevant political science literature, including the articles that follow, characterizes it—an extractive institution designed for social control that does not provide protection to those it most closely surveils. Those most policed and least protected include Black, Latinx (especially immigrant), and poor Americans. However, this scholarship also suggests that real and lasting change can be achieved through enhancing representation for RCS communities at the subnational level, and otherwise centering the voices of marginalized people.
A key failing of much of the political science research on the criminal legal system is also a key failing of most policy analyses of and recommendations for that same system: a lack of attention to the experiences and perspectives of those most frequently in contact with the system, members of RCS communities. Scholars have shown that the criminal legal system is the primary arm of the state with which these individuals have contact, and that individuals are at once both overly surveilled and under-protected (Weaver and Lerman Reference Weaver and Lerman2010; Weaver, Prowse, and Piston Reference Weaver, Prowse and Piston2019; Weaver et al. Reference Weaver, Prowse and Piston2020). It is impossible to understand the impact of crime and punishment without the input of RCS people. These voices are now calling for public officials to defund the police and invest in alternatives.
Research further indicates that providing better representation to the over-policed, especially in state and local elected offices, can promote change. It is important to think beyond hiring more Black police officers when considering the potential for representation to improve individuals' experiences with the criminal legal system, for example. Early calls to increase the representation of Black people in police forces did not yield the long-term change for which many hoped (Forman Reference Forman2017). Additionally, it is unreasonable to expect individual officers to drive change from within centuries-old systems developed to prevent them from attaining power, and in which institutional decision making, rather than individual biases, is central to the persistence of unequal outcomes (Reference EckhouseEckhouse N.d. b).
The articles included in this special issue also highlight important methodological advances and pitfalls in this field of research. The creative use of administrative data in the included articles allows the authors to paint vibrant pictures of the ways that race, the criminal legal system, and inequality intersect. Without such data, we would lack knowledge about the role of descriptive representation in driving criminal legal outcomes or the ways that facially neutral institutional policies can yield unequal outcomes. At the same time, important work reminds us that administrative data by their nature, and the sort of information they do and do not capture, can obscure a wide variety of biases that inform decision making by public officials (Knox et al. Reference Knox and Mummolo2020a; Reference Knox, Lowe and Mummolo2020b). Rather than undercut the scholarly advances developed from administrative records, this work highlights that the misstep lies in casting administrative records as free from the various biases that threaten the validity of all kinds of data. It further suggests that scholars have not thought adequately about sources of bias in administrative data, which is of concern because the most marginalized are also often the least likely to be captured by administrative records beyond those accounting for their criminal processing.
The other methodological advance included in this issue is The Portals Project (Weaver et al. Reference Weaver, Prowse and Piston2020). No previous approach has yielded such rich, detailed data of the lived experiences of America's most policed citizens. Particularly innovative is the dialectic form that develops from facilitating conversations between members of RCS communities without the interference of an interviewer. The Portals Project and the collection of papers developed from it are both a major methodological and theoretical development within the study of the criminal legal system in political science.
The articles in this volume likewise point to several directions ripe for future research. This essay situates the police as the central institution of social control in the United States. Moreover, the institutional framework that functions to marginalize Black and poor Americans can be applied to groups newly identified as threatening or deviant. The expansion of interior enforcement to regulate immigrant communities is a prime example. More attention to institutional characteristics and developments that allow the lines between various uses of state force to blur is needed. The current moment of protest highlights why: in 2020, Customs and Border Patrol forces were deployed to surveil, contain, and repress protests (Kanno-Youngs and Benner Reference Kanno-Youngs and Benner2020). What are the institutional factors that increase the capacity for unilateral action in the area of law enforcement?
As we have reiterated throughout this essay, more work is needed that pays close attention to the voices of those most frequently subjected to state surveillance. Drawing on the articles featured in this volume, we have painted with broad strokes in characterizing how the policed themselves view policing. More research is needed to uncover the varied and dynamic opinions of marginalized people. Emerging scholarship highlights that the perspectives of people targeted by the criminal legal system are not monolithic and that they diverge along lines of race, class, gender, and sexual identity (Jackson Reference Jackson2019; Jefferson Reference Jefferson2019). A full account of the carceral state requires attention to the range of ways the criminal legal system intersects with and reinforces power.
Attention to changing attitudes and behaviors in the current moment of mobilization to address police brutality and systemic racism is a final area for future work. Work in this volume suggests that there is a widely held political consciousness punctuated by state violence (Walker et al. this volume). Yet, do changing attitudes towards institutional racism translate into changing policy positions? How widely supported is the notion of defunding the police? Work in this volume by Medenica et al. raises further questions about what it means to come of political age during a moment when police slayings of unarmed Black people are a feature of the daily news. Under what conditions can a growing carceral consciousness be mobilized to effectively challenge state power? Case studies from places like San Francisco, NY City and Chicago point to the importance of community-based organizations and the uneasy endogeneity between activism and reducing structural barriers to inclusion (Michener Reference Michener2020; Owens and Walker Reference Owens and Walker2018; Shineman Reference Shineman2018; Reference Shineman2020). The precise opportunity structures to support mobilization, how to build them, and the state response when we do are fertile ground for the next generation of scholars of the American carceral state.
