CHAPTER SEVEN THE IRONY OF STATE INTERVENTION LABELING THEORY John Braithwaite 1951–

CHAPTER SEVEN THE IRONY OF STATE INTERVENTION LABELING THEORY

John Braithwaite

1951–

Australian National University

Author of Reintegrative Shaming Theory

Courtesy of John Braithwaite

When people violate the law, we assume that the state’s most prudent response is to make every effort to apprehend the culprits and process them through the criminal justice system. Informing this assumption is the belief that state intervention reduces crime, whether by scaring offenders straight, by rehabilitating them, or by incapacitating them so that they no longer are free to roam the streets victimizing citizens. Scholars embracing the labeling theory of crime, however, attack this line of reasoning vigorously. They caution that, rather than diminishing criminal involvement, state intervention—labeling and reacting to offenders as “criminals” and “ex-felons”—can have the unanticipated and ironic consequence of deepening the very behavior it was meant to halt.

Thus, labeling theorists argue that the criminal justice system not only is limited in its capacity to restrain unlawful conduct but also is a major factor in anchoring people in criminal careers. Pulling people into the system makes matters worse, not better. This contention takes on importance when we consider the width of the net cast by criminal justice officials. On any given day, more than 2.1 million Americans are in jails or in state or federal prisons, and 4.65 million more are on probation or parole supervision and living in communities (Kaeble & Glaze, 2016). For minorities, moreover, the presence of state intervention in their lives is particularly extensive. Nearly one in three African American males between 20 and 29 years of age is under some form of control by the criminal justice system (Mauer, 1999; see also Pattillo, Weiman, & Western, 2004). In an analysis of a cohort born between 1965 and 1969, Western (2006) has shown the special vulnerability to incarceration of the most disadvantaged minorities. Thus, among African American men who are high school dropouts, he calculated that 58.9%—nearly 6 in 10—will spend some time in prison during their lifetime; the comparable figure for White dropouts is 11.2% (Western, 2006; see also Wacquant, 2001, 2009).

In this chapter, we examine why labeling theorists believe that state intervention is dangerously criminogenic, particularly in light of the faith that current policy makers have in the power of prisons to solve the crime problem. We also consider why, during the 1960s and early 1970s, labeling theory (or, as it also is known, the “societal reaction” approach) grew rapidly in popularity and markedly influenced criminal justice policy. Later, we consider some recent theoretical extensions of the labeling perspective. First, however, we discuss how scholars in this school of thought rooted their work in a revisionist view of what crime is and of how its very nature is tied inextricably to the nature of societal reaction.

THE SOCIAL CONSTRUCTION OF CRIME

Before the advent of labeling theory, most criminologists were content to define crime as “behavior that violates criminal laws.” This definition was useful in guiding inquiry and in setting rough boundaries for criminology as a field of study. Too often, however, the easy acceptance of this definition led criminologists to take for granted that they knew what crime was and could get on with the business of finding its causes either in offenders or in their environments. This reification of conceptual definitions blinded many scholars to seeing that, as a socially constructed phenomenon, what is or is not “criminal” changes over time, across societies, and even from one situation to the next. Without this insight, scholars failed to explore the social circumstances that determine which behaviors are made criminal, why some people have the label of criminal applied to them, and what consequences exist for those bearing a criminal label.

Labeling theorists sought to correct this oversight. As a starting point, they urged criminologists to surrender the idea that behaviors are somehow inherently criminal or deviant. To be sure, behavior such as killing or raping another person is injurious by nature. Even so, what makes an act criminal is not the harm it incurs but rather whether this label is conferred on the act by the state. Thus, it is the nature of the societal reaction and the reality it constructs—not the immutable nature of the act per se—that determines whether a crime has occurred (Becker, 1963; Erikson, 1966). Pfohl’s (1985) discussion of whether killing is “naturally deviant” illustrates the essence of this position nicely:

Homicide is a way of categorizing the act of killing, such that taking another’s life is viewed as totally reprehensible and devoid of any redeeming social justification. Some types of killing are categorized as homicide. Others are not. What differs is not the behavior but the manner in which reactions to that behavior are socially organized. The behavior is essentially the same: killing a police officer or killing by a police officer; stabbing an old lady in the back or stabbing the unsuspecting wartime enemy; a Black slave shooting a White master or a White master lynching a Black slave; being run over by a drunken driver or slowly dying a painful cancer death caused by a polluting factory. Each is a type of killing. Some are labeled homicide. Others are excused, justified, or viewed, as in the case of dangerous industrial pollution, as environmental risks, necessary for the health of our economy, if not our bodies. The form and content of what is seen as homicide thus varies with social context and circumstance. This is hardly the characteristic of something which can be considered naturally or universally deviant. (p. 284)

Armed with this vision of crime as socially constructed, labeling theorists argued that criminologists could ill afford to neglect the nature and effects of societal reaction, particularly when the state was the labeling agent. One important area they investigated was the origins of criminal labels or categories. Howard Becker (1963), for example, explored how the commissioner of the treasury department’s Federal Bureau of Narcotics served as a “moral entrepreneur” who led a campaign to outlaw marijuana through the Marijuana Tax Act of 1937. In Becker’s view, this campaign, marked by attempts to arouse the public by claims that smoking pot caused youths to lose control and commit senseless crimes, was undertaken to advance the bureau’s organizational interests. The bureau’s success in securing passage of the act, Becker concluded, resulted in “the creation of a new fragment of the moral constitution of society, its code of right and wrong” (p. 145; see also Galliher & Walker, 1977).

Numerous other scholars provided explanations of attempts to criminalize other forms of behavior. Anthony Platt (1969) studied how, at the turn of the 20th century, affluent women “invented delinquency” through their successful campaign to create a court exclusively for juveniles. With the establishment of this court, juveniles were treated as a separate class of offenders, and the state was granted the power to intervene not only when youths committed criminal acts but also when they showed signs of a profligate lifestyle—acts such as truancy and promiscuity that became known as “status offenses.” This movement, Platt observed, was class biased because it was directed primarily at “saving” lower-class youths, reaffirmed middle-class values, and left unaddressed the structural roots of poverty.

In a like vein, Stephan Pfohl (1977) investigated the “discovery of child abuse,” which prior to the 1960s had largely escaped criminal sanctioning. Pfohl showed how pediatric radiologists, who read X-rays in hospitals, were instrumental in bringing attention to the abuse of children. Their efforts, he claimed, were fueled by the incentive to demonstrate the importance of pediatric radiology and, thereby, to enhance the low prestige of this specialty in the medical community.

Kathleen Tierney (1982) focused on the “creation of the wife-beating problem.” She revealed how wife battering did not emerge as a salient social issue deserving of criminal justice intervention until the mid-1970s, when feminist organizations and networks were developed sufficiently to make domestic violence socially visible, to establish victim shelters, and to earn the passage of new laws. Also critical to the battered women’s movement was the media, which dramatized wife beating because

it mixed elements of violence and social relevance . . . [and] provided a focal point for serious media discussion of such issues as feminism, inequality, and family life in the United States—without requiring a sacrifice of the entertainment value, action, and urgency on which the media typically depend. (pp. 213–214)

These and similar analyses showed, therefore, that what the state designated as criminal was not a constant but rather the result of concrete efforts by men and women to construct a different reality—to transform how a particular type of behavior was officially defined. Moreover, it was not simply the extent or harmfulness of the behavior that determined its criminalization. After all, drug use, juvenile waywardness, child abuse, and wife battering had long escaped state criminal intervention despite their pervasiveness and injurious effects. These behaviors were criminalized only when the social context was ripe for change and groups existed that were sufficiently motivated and powerful to bring about legal reform.

But what occurs once a form of behavior is defined as unlawful and a criminal label is created? To whom will this label be applied? The common answer to this question is that those who engage in the proscribed activity will be labeled as criminals. Labeling theorists, however, again were quick to point out that such thinking implicitly assumes that societal reaction can be taken for granted and treated as nonproblematic. It ignores not only that the innocent occasionally are falsely accused but also that only some lawbreakers actually are arrested and processed through the criminal justice system (Becker, 1963). A lawbreaker’s behavior, therefore, is only one factor—and perhaps not the most important factor at that—in determining whether a criminal label is conferred.

A number of labeling theory studies illustrate this principle. In one experimental study conducted in Los Angeles, a racially mixed sample of college students, all of whom had perfect driving records during the past year, had Black Panther bumper stickers affixed to their car bumpers. Within hours of the experiment’s start, they began to accumulate numerous tickets for traffic violations (e.g., improper lane changes), thereby suggesting that police officers were “labeling” differentially on the basis of the bumper stickers (Heusenstamm, 1975). Other researchers interested in police encounters with juveniles observed that officers’ decisions to arrest wayward youths were based less on what laws were violated and more on the juveniles’ demeanor—whether they were respectful and cooperative or surly and uncooperative (Piliavin & Briar, 1964).

Steffensmeier and Terry (1973) examined whether customers in three stores would report a shoplifting incident to an employee. The incidents were rigged, with study confederates instructed to place themselves “under the direct observation of a customer (the subject), and then steal some item of merchandise in an obvious and deliberate manner” (1973, p. 319). Accomplices, serving as store employees, would then make themselves “readily available should the subject wish to report the shoplifting incident” (p. 319). The experimental design varied not only the sex of the shoplifter and customer but also the appearance of the offender. The male and female “straight” shoplifters were neatly dressed and well groomed. By contrast, the “hippie” shoplifters had uncombed hair, patched blue jeans, and shabby shoes and no socks on their feet. Although the sex of either party had little impact on reporting, the subjects were more likely to turn in the hippy shoplifters. In short, labeling was contingent not only on the offenders’ behavior but also on their appearance. “A hippie identity or label,” concluded Steffensmeier and Terry (1973), “constitutes, for many subjects, a master status, a pivotal category, or a central train, which greatly increases the individual’s vulnerability to stigmatization as a deviant” (p. 424).

Still another researcher, William Chambliss (1973), examined one community’s societal reaction to two groups of high school boys: a middle-class group he called the “Saints” and a working-class group known as the “Roughnecks.” Although the two groups had a rate of delinquency that was “about equal,” the “community, the school, and the police react[ed] to the Saints as though they were good, upstanding, nondelinquent youths with bright futures but [reacted] to the Roughnecks as though they were tough, young criminals who were headed for trouble” (pp. 24, 28). Why did this occur? In Chambliss’s view, a major reason was the community’s lower-class bias, which led police to define the Saints’ behaviors as pranks and to anticipate that the poorly dressed and poorly mannered Roughnecks were up to no good.

Through these and similar studies, labeling theorists revealed that the nature of state criminal intervention was not simply a matter of an objective response to illegal behavior but rather was shaped intimately by a range of extralegal contingencies (Cullen & Cullen, 1978). Much attention was focused on how criminal justice decision making was influenced by individual characteristics such as race, class, and gender. In addition, however, researchers explored how rates of labeling vary according to the resources available to and political demands placed on police and other criminal justice organizations. This body of research also highlighted how official measures of the extent of crime, such as arrest statistics reported each year by the Federal Bureau of Investigation, depend not only on how many offenses are committed but also on the arrest practices of police. Accordingly, official crime statistics may be inaccurate to the extent that they reflect a systematic bias in enforcement against certain groups (e.g., the urban poor) or fluctuations in the willingness of police to enforce certain laws (e.g., rape).

In sum, labeling theorists elucidated the importance of considering the origins of criminal labels and the circumstances that affected their application. But they did not confine their attention to these concerns. They proceeded to put forward the more controversial proposition that labeling and reacting to people as criminals composed the major source of chronic involvement in illegal activity. They claimed that state intervention created crime rather than halted crime. We consider this line of reasoning next.

LABELING AS CRIMINOGENIC: CREATING CAREER CRIMINALS

Where should the search for the cause of crime begin? As we have seen, scholars traditionally have argued that the starting point for criminological inquiry should be either individual offenders themselves or the social environments in which they reside. Labeling theorists, however, argued that causal analysis should commence not with offenders and their environs but rather with the societal reaction that other people—including state officials—have toward offenders. Again, their contention was based on the belief that labeling and treating lawbreakers as criminals have the unanticipated consequence of creating the very behavior they were meant to prevent.

Early Statements of Labeling Theory

The idea that criminal justice intervention can deepen criminality did not originate with the labeling theorists of the 1960s. A number of early criminologists, for example, noted that prisons—a severe form of societal reaction—were breeding grounds for crime. Jeremy Bentham, the classical school theorist, lamented that “an ordinary prison is a school in which wickedness is taught by surer means than can ever be employed for the inculcation of virtue. Weariness, revenge, and want preside over these academies of crime” (cited in Hawkins, 1976, p. 57). In 1911, Lombroso echoed this theme in his observation that “the degrading influences of prison life and contact with vulgar criminals . . . cause criminaloids who have committed their initial offenses with repugnance and hesitation to develop later into habitual criminals” (Lombroso-Ferrero, 1972, pp. 110–111). Willem Bonger, the Dutch Marxist scholar, noted similarly that in imprisoning “young people who have committed merely misdemeanors of minor importance . . . , we are bringing up professional criminals” (Bonger, 1916/1969, p. 118). And Shaw (1930) felt compelled to title the chapter in The Jack-Roller on correctional institutions “The House of Corruption.”

Although observations such as these anticipated the more developed views of later labeling theorists, Frank Tannenbaum (1938) was perhaps the earliest scholar to specify in general terms the principle that state intervention is criminogenic because it “dramatizes evil.” “Only some of the children [who break the law] are caught,” noted Tannenbaum (1938), “though all may be equally guilty.” And this event is not without consequence. The youth is “singled out for specialized treatment” as the “arrest suddenly precipitates a series of institutions, attitudes, and experiences which other children do not share.” Now the youth’s world is changed fundamentally; people react differently, and the youth starts to reconsider his (or her) identity. “He is made conscious of himself as a different human being than he was before his arrest,” Tannenbaum observed. “He becomes classified as a thief, perhaps, and the entire world about him has suddenly become a different place for him and will remain different for the rest of his life” (p. 19). This is particularly true if the youth is placed in prison, for that is where incipient, “uncrystallized,” criminal attitudes are “hardened” through the “education” that older offenders provide (pp. 66–81).

In the end, Tannenbaum (1938) cautioned, we would do well to consider the potential consequences before taking the initial step of pulling a juvenile into the criminal justice system:

The first dramatization of “evil” which separates the child out of his group for specialized treatment plays a greater role in making the criminal than perhaps any other experience. . . . He has been tagged. A new and hitherto nonexistent environment has been precipitated out of him. The process of making the criminal, therefore, is a process of tagging, defining, identifying, segregating, describing, emphasizing, [and] making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing, and evoking the very traits that are complained of. . . . The person becomes the thing he is described as being. (pp. 19–20)

In 1951, Edwin Lemert further formalized these insights when he distinguished between two types of deviance: primary and secondary. Primary deviance, he contended, arises from a variety of sociocultural and psychological sources. At this initial point, however, the offender often tries to rationalize the behavior as a temporary aberration or sees it as part of a socially acceptable role. The offender does not conceive of himself or herself as deviant, nor does the offender organize his or her life around this identity (p. 75). By contrast, secondary deviance is precipitated by the responses of others to the initial proscribed conduct. As societal reaction intensifies progressively with each act of primary deviance, the offender becomes stigmatized through “name calling, labeling, or stereotyping” (Lemert, 1951, pp. 76–77). The original sources of waywardness lose their salience as others’ reactions emerge as the overriding concern in the person’s life and demand to be addressed. Most often, the offender solves this problem by accepting his or her “deviant status” and by organizing his or her “life and identity . . . around the facts of deviance.” Accordingly, the offender becomes more, rather than less, embedded in nonconformity. As Lemert (1972) explained:

Primary deviance is assumed to arise in a wide variety of social, cultural, and psychological contexts, and at best [it] has only marginal implications for the psychic structure of the individual; it does not lead to symbolic reorganization at the level of self-regarding attitudes and social roles. Secondary deviation is deviant behavior, or social roles based upon it, which becomes [a] means of defense, attack, or adaptation to overt and covert problems created by the societal reaction to primary deviation. In effect, the original “causes” of the deviation recede and give way to the central importance of the disapproving, degradational, and isolating reactions of society. (p. 48)

Labeling as a Self-Fulfilling Prophecy

Although Tannenbaum and Lemert stated fairly explicitly the theme that societal reaction can induce waywardness, this view of labeling did not win wide intellectual attention and become an identifiable school of thought in the criminological community until the mid- to late 1960s (Cole, 1975). As will be discussed later, the sudden pervasive appeal of labeling theory can be traced largely to the social context of the 1960s that made it seem plausible that state intervention was the crime problem’s cause and not its solution. But another circumstance also was important in contributing to labeling theory’s ascendancy: the existence of a group of scholars—Howard Becker, Kai Erikson, and John Kitsuse were perhaps the most influential among them—whose combined writings argued convincingly that societal reaction is integral to the creation of crime and deviance (Becker, 1963; Erikson, 1966; Kitsuse, 1964).

To show how societal reaction brings about more crime, these labeling theorists borrowed Merton’s (1968) concept of the “self-fulfilling prophecy.” For Merton, “The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behavior which makes the originally false conception come true” (p. 477, emphasis in original).

Consistent with this reasoning, labeling scholars argued that most offenders are defined falsely as criminal. In making this claim, they did not mean to imply that offenders do not violate the law or that justice system officials have no basis for intervening in people’s lives. Instead, the falseness in definition is tied to the fact that criminal labels, once conferred, do not simply provide a social judgment of the offenders’ behavior; they also publicly degrade the offenders’ moral character (Garfinkel, 1956). That is, being arrested and processed through the justice system means that citizens not only define the offenders’ lawbreaking conduct as bad but also assume that the offenders as people are criminal and, as a consequence, are the “type” that soon would be in trouble again. Yet as Lemert’s (1951) work suggested, such predictions about personal character and future behavior are likely to be incorrect. Much primary deviance—including initial experiments in crime and delinquency—is not rooted fundamentally in character or lifestyle and thus is likely to be transitory and not stable (Scheff, 1966).

In short, theorists observed that the meaning of the label “criminal” in our society leads citizens to make assumptions about offenders that are wrong or only partially accurate. These assumptions are consequential, moreover, because they shape how people react to offenders. Equipped with false definitions or stereotypes of criminals, citizens treat all offenders as though they were of poor character and likely to recidivate. On one level, these reactions are prudent, if not rational; after all, it seems safer not to chance having one’s child associate with the neighborhood’s “juvenile delinquent” and not to employ a “convicted thief” to handle one’s cash register. Yet on another level, these reactions have the power to set in motion processes that evoke the very behavior that was anticipated—that transform an offender into the very type of criminal that was feared.

But how is the prophecy fulfilled? How are incipient criminals, who might well have gone straight if left to their own devices, turned into chronic offenders? Again, the conferring of a criminal label singles out a person for special treatment. The offender becomes, in Becker’s (1963) words, “one who is different from the rest of us, who cannot or will not act as a moral human being and therefore might break other important rules” (p. 34). As a result, being a “criminal” becomes the person’s “master status” or controlling public identification (pp. 33–34; see also Hughes, 1945). In social encounters, citizens do not consider the offender’s social status as a spouse, as a parent, or perhaps as a worker; they focus, first and foremost, on the fact that they are interacting with a criminal.

Admittedly, this public scrutiny might scare or shame some offenders into conformity. But for other offenders, the constant accentuation of their criminal status and the accompanying social rebuke has the unanticipated consequence of undermining the conforming influences in their lives and of pushing them into criminal careers. Thus, in the face of repeated designation as criminals, offenders are likely to forfeit their self-concepts as conformists or “normal” persons and to increasingly internalize their public definition as deviants. As this identity change takes place, the offenders’ self-concepts lose their power to encourage conformity; the pressure to act consistently with their self-concepts now demands breaking the law.

Similarly, people who are stigmatized as criminal often are cut off from previous prosocial relationships. As one’s reputation as a reprobate spreads, phone calls are not returned, invitations to social engagements are not extended, friends suddenly no longer can find time to meet, and intimate relationships terminate. One solution to being a social pariah is to seek out those of a like status. Accordingly, conditions are conducive for offenders wearing a criminal label to differentially associate with other lawbreakers, thereby forming criminal subcultural groupings. Such associations are likely to further reinforce antisocial values and to provide a ready supply of partners in crime.

The abrogation of ties to conventional society, labeling theorists warned, is most probable when state intervention involves institutionalization. Imprisonment entails the loss of existing employment and strains family relations to the point where they might not survive. It also mandates that offenders reside in a social setting where contact with other, more hardened criminals is enforced. Education in crime, as Tannenbaum (1938) and other early criminologists noted, is the likely result.

Finally, saddling offenders with an official criminal label, particularly when they have spent time in jail and carry the status of ex-convict, limits their employment opportunities. Through their jail sentences, offenders may “pay back” society for their illegal behavior, but they find it far more difficult to shake their definition as persons of bad character who might fall by the wayside at any time. Therefore, employers see them as poor risks and hesitate to hire them or to place them in positions of trust. Most often, offenders are relegated to low-paying dreary jobs with few prospects for advancement. In this context, crime emerges as a more profitable option and a lure that only the irrational choose to resist.

In sum, labeling theorists asserted that the false definition of offenders as permanently criminal and destined for lives of crime fulfills this very prophecy by evoking societal reactions that make conformity difficult and criminality necessary, if not attractive. The labeling process thus is a powerful criminogenic force that stabilizes participation in illegal roles and turns those marginally involved in crime into chronic or career offenders. It is an especially dangerous source of crime, moreover, because its effects are unanticipated and rarely observed. Indeed, the common response to escalating crime rates is not to minimize societal reaction but rather to arrest and imprison more people. From a labeling perspective, such “get tough” policies ultimately will prove self-defeating, for they will succeed only in subjecting increasing numbers of offenders to a self-fulfilling process that makes probable lives of crime.

Assessing Labeling Theory

Few criminologists would dispute either that labeling theory succeeded in bringing attention to the issue of societal reaction or that this innovative theoretical focus was an important reason behind the perspective’s popularity. Even so, labeling theory’s central propositions have not escaped considerable critical analysis (Gove, 1975, 1980). As we will see, this assessment suggests the need to temper some of the perspective’s boldest claims but also indicates that it would be unwise to discount the insights set forth in the labeling tradition.

One line of criticism came from conflict or radical criminologists. Although they agreed that crime was socially constructed and that labels were differentially applied, they did not believe that labeling theorists went far enough in their analysis. Radical scholars argued that the origins and application of criminal labels were influenced fundamentally by inequities rooted in the very structure of capitalism. As Chapter 8 shows in greater detail, radicals insisted that differences in power determined that the behaviors of the poor, but not those of the rich, would be criminalized. Labeling theorists understood that political interest and social disadvantage influenced societal reaction, but again, they did not make explicit the connection of the criminal justice system to the underlying economic order. As Taylor, Walton, and Young (1973) observed in The New Criminology, they failed “to lay bare the structured inequalities in power and interest which underpin processes whereby laws are created and enforced.” Thus, they stopped short of exploring “the way in which deviancy and criminality are shaped by society’s larger structure of power and institutions” (pp. 168–169).

A very different critique was leveled by criminologists of a traditional positivist bent, who maintained that labeling theory’s major tenets wilted when subjected to empirical test. These critics contended—correctly, we believe—that the perspective’s popularity had less to do with its empirical adequacy and more to do with its voicing a provocative message that meshed with the social times (Hagan, 1973; Hirschi, 1975). After all, in asserting that state intervention deepened criminality, none of the early labeling theorists had presented hard data supporting this thesis.

Thus, these positivist or empirically oriented criminologists brought data to bear on what were considered labeling theory’s two principal propositions: first, that extralegal factors, not behavior alone, shaped who was labeled; and second, that labeling increased criminal involvement.

The Extralegal Factors Proposition.

To assess the first labeling theory proposition, scholars set up studies to test whether extralegal factors, such as an offender’s race, class, and gender, are more important in regulating criminal justice labeling than are legal factors, such as the seriousness of the illegality or the offender’s past record. Contrary to the expectations of the labeling theorists, research studies have found repeatedly that the seriousness of the crime—not the offender’s social background—is the largest determinant of labeling by police and court officials (Sampson, 1986b). Thus, from early on, critics of labeling theory have concluded that extralegal variables exert only a weak effect on labeling (Gove, 1980; Hirschi, 1975; Tittle, 1975b).

Not all criminologists, however, would agree with this conclusion. Research by Robert Sampson, for example, forced a reconsideration of the critics’ sweeping rejection of the idea that official reactions are influenced by a variety of contingencies. Thus, Sampson (1986b) uncovered an “ecological bias” in police control of juveniles. Even when he took into account the seriousness of lawbreaking behavior, police were found to be more likely to make arrests in poor neighborhoods than in more affluent neighborhoods. One possible explanation for this ecological pattern is that police resources are concentrated more heavily in lower-class areas, where it is assumed that anyone encountered is likely to have a character sufficiently disreputable to warrant close surveillance. In any case, Sampson provided convincing evidence of an extralegal circumstance that causes differential selection in the criminal justice system.

The controversy over labeling has resurfaced in the recent debate over “racial profiling.” Research is now probing whether African Americans (and other minorities) experience traffic stops because of their race and ethnicity—that is, because they are guilty of “driving while Black (or Brown).” Although there is some conflicting evidence, even when other behavioral factors are taken into account, minority drivers appear to be stopped, cited, searched, arrested, and have force used against them more often. It is unclear whether this disparity is due to individual prejudice on the part of officers or to more institutionalized practices in which officers stop minorities because they believe that they are more likely to be transporting drugs or because they are driving in neighborhoods “where they are out of place and do not belong.” Regardless, consistent with labeling theory, whether individuals are subjected to social control and potentially have a criminal label attached to them is determined by more than simple legal factors (Engel & Calnon, 2004; Engel, Calnon, & Bernard, 2002; Novak, 2004).

Particularly controversial as well has been the national attention given to police killings of unarmed Black men, several of which have been captured by videos widely available on the Internet (Hayes, 2017; Mac Donald, 2016; Zimring, 2017). The 2014 shooting of Michael Brown in Ferguson, Missouri, set off a firestorm of protest culminating in the Black Lives Matter movement. Other celebrated cases videotaped by onlookers—such as the suffocation of Eric Garner in Staten Island, New York, the shooting of 12-year-old Tamir Rice in Cleveland, Ohio, and the killing of Walter Scott in North Charleston, South Carolina, among others—further energized attention to this issue. Charges have been made that police officers either are overtly racist and thus take Black lives wantonly or harbor implicit racial biases rooted in stereotypes of the “dangerous Black thug” that lead to premature discharge of their firearms. Disentangling how much police use of deadly force is racially motivated—that is, how much is an extralegal labeling effect—has generated considerable controversy.

Part of the difficulty is the lack of a national reporting system on police killings (Zimring, 2017). The best estimate is that officers kill about 1,000 people annually, 51.6% of whom are categorized as White Non-Hispanic and 26.1% as Black/African American (Zimring, 2017). Given that African Americans constitute about 12% to 13% of the U.S. population, might this overrepresentation in victims of police violence be evidence of discrimination? A well-known advocate of the police, Mac Donald (2016, p. 73) disputes this view, arguing that the figures on Black police killings reflect racial differences in violent crime and the fact that “40 percent of cop killers” are Black. Further, in three fourths of cases, assailants of both races have a gun (most often) or some other weapon (e.g., a knife) (Zimring, 2017). Still, one area where bias may arise is when police kill a supposed suspect when they erroneously assume the individual is wielding a gun—the very cases depicted on videos. As Zimring (2017, p. 59) asks, “Why then do racial minorities have twice the proportion of inaccurate police gun assumptions?”

One of the most persuasive demonstrations of racial bias can be seen in an innovative study that analyzed the language officers used toward offenders as recorded by body cameras during traffic stops—an event that occurs about 26 million times in the United States annually (Voigt et al., 2017). The research team was given access to the body-camera footage for the month of April 2014 in the racially diverse city of Oakland. They were able to transcribe the language used in 981 stops (682 of Blacks and 299 of Whites), which in turn yielded 36,738 “utterances.” A system was developed based on “computational linguistic techniques” that allowed each utterance to be judged by whether “respect” was being communicated. Even when a number of contextual factors were controlled (e.g., severity and outcome of the stop, location of the stop), the data revealed that officers spoke with “consistently less respect” toward Black as opposed to White drivers (Voigt et al., 2017, p. 1). In concrete terms, the researchers found that “white community members are 57% more likely to hear an officer say one of the more respectful utterances . . . whereas black community members are 51% more likely to hear an officer say one of the least respectful utterances” (2017, p. 4). A complicating finding, however, was that the race of the officer was not related to racial disparities in the use of respectful language. This result suggests that bias toward African American drivers may be tied less to who initiated the traffic stop and more to occupying the role of a police officer.

Finally, perhaps the best empirical evidence on this issue is the meta-analysis of 27 independent data sets assessing police officer arrest decisions conducted by Kochel, Wilson, and Mastrofski (2011). The researchers discovered that the probability of arrest was .20 for Whites and .26 for African Americans—a gap that was not explained away when legal factors were controlled. Is this disparity meaningful? Kochel and colleagues (2011) noted that Blacks had a 30% higher chance of arrest (6% vs. 20%), a difference they believed to be “large enough to be of practical concern” (p. 490). As they concluded, “race matters” (p. 498).

Theories of Societal Reaction.

Beyond sheer discrimination, what might influence why minorities are overrepresented in the criminal justice system—more vulnerable to arrest and eventually incarceration? Three theoretical perspectives merit discussion. These approaches are not generally seen as part of labeling theory. Nonetheless, they are theories of societal reaction, and thus have the potential to enrich the labeling paradigm.

First, deployment theory argues that police are more likely to arrest minorities because they are more likely to be deployed in greater numbers in inner-city neighborhoods whose residents are disproportionately people of color (Engel, Smith, & Cullen, 2012; Tomaskovic-Devey, Mason, & Zingraff, 2004). Allocating officers to these communities reflects residents’ higher calls for service, open-air drug markets that create public disorder, and the concentration of serious violent crime, including shootings and homicides. “Problem-oriented” or “hot spots” policing requires that personnel be focused on locations where problems—whether incivilities or crime—exist (Weisburd & Braga, 2006). If law enforcement refused to respond to troubles in impoverished communities, it would rightly be criticized for “not caring” and thus acting in a discriminatory fashion. But the very presence of police in a neighborhood increases the likelihood that officers will do what officers do: exercise social control. Police might respond to serious disputes, whether domestic or on the streets, but they also might stop and frisk young males suspected of carrying weapons or illicit substances, halt and search vehicles with broken taillights, or sweep up low-level drug pushers. Whites engaged in the same behaviors would not be arrested because, in general, police are not patrolling their community streets. Empirical tests of this theory are limited. However, some support can be drawn from a study in Seattle, which reported that racial differences in drug arrests were largely attributable to differential police deployment (Engel et al., 2012).

Second, racial threat theory is rooted in group conflict theory (see Chapter 8). It argues that the level of social control exercised by the majority group, Whites, will increase as the number of minorities in an area, African Americans, grows. Thus, “as minority racial groups grow in size relative to Whites, they are likely to develop greater power, economic resources, and political influence in the community and are better able to compete with Whites for power” (Feldmeyer & Ulmer, 2011, p. 240). This presence and power are interpreted as a threat to White privilege, which may foster the specific perception that Blacks pose a special threat through crime. In response, Whites thus may direct more social control toward minorities—as manifested by more police being hired, more arrests being made, and more severe sanctions being handed out (including imprisonment and the death penalty). Racial threat also has been linked to the lynching of Blacks. In short, racial threat theory would predict that the degree of racial disparity in the criminal justice system would vary by ecological area—higher in places where minority populations are rising and lower where minority populations are small and stable. Although not all empirical tests are supportive (Feldmeyer & Ulmer, 2011), studies exist that are consistent with the racial threat thesis (Pickett & Chiricos, 2010).

Third, developed by Darrell Steffensmeier and colleagues, focal concerns theory proposes that criminal justice officials—especially judges—make decisions based on three main criteria: (1) blameworthiness, or how culpable and thus deserving of punishment offenders are; (2) protection of the community, or how likely it is that offenders are dangerous and will recidivate and thus in need of incarceration; and (3) practical constraints and consequences, or how much a given sentence will cost the state, will place a judge’s reputation at risk (e.g., an offender placed on probation commits a heinous crime), or will prove disruptive to others (e.g., imprisoning an offender will leave kids with no parent to support them) (Steffensmeier & Demuth, 2006; Steffensmeier, Painter-Davis, & Ulmer, 2014). These focal concerns serve as “cognitive filters—a perceptual shorthand—to manage the uncertainty and competing pressures that characterize the sentencing environment by utilizing stereotypes and typescripts linked to case and defendant characteristics” (Steffensmeier et al., 2014, p. 12; emphasis in original). Offenders’ current crime and past record—legal factors—affect the application of focal concerns to sentencing (e.g., an offender with a lengthy record who commits a serious violent crime is going to be seen as blameworthy, dangerous, and worth the cost of incarceration). However, discrimination can infuse the sentencing process through the focal concerns if judges’ cognitive filers are biased by racial, gender, and age stereotypes. For example, if young, Black males are perceived to be more dangerous and at a higher risk of recidivating than Whites, then they are likely to receive harsher penalties. In fact, research seems to confirm this discriminatory outcome (Steffensmeier & Demuth, 2006; Steffensmeier et al., 2014). This same research also reports a gender bias in favor of females, in all likelihood because they are seen as less of a threat to public safety and as needed in the community to care for their children (see also Corsaro, Pizarro, & Browning, 2015).

These three theoretical perspectives on societal reaction move labeling theory beyond the study of whether extralegal factors matter. At times, this research has descended into abstract empiricism, with investigators probing precisely how much statistical variation in a complex multivariate regression model might be explained by legal versus extralegal factors. The critical task, however, is not simply to examine whether discrimination exists but also to understand why and under what conditions this might occur. To address these concerns, empirical research needs to be theoretically informed. The three theories reviewed provide important conceptual frameworks to help to direct this next generation of research within the labeling tradition.

State Intervention Is Criminogenic Proposition.

Labeling theory’s second major proposition is that state intervention through the justice system causes stable or career criminality. Phrased in these terms, however, the proposition is difficult to sustain. As critics point out, many offenders become deeply involved in crime before coming to the attention of criminal justice officials (Mankoff, 1971). Chronic delinquency, for example, seems far more tied to the criminogenic effects of spending years growing up in a slum neighborhood than to being arrested and hauled into juvenile court as a teenager. Similarly, we know that offenders become extensively involved in illegalities such as corporate crime, political corruption, wife battering, and sexual abuse without ever being subjected to criminal sanctioning.

Over the last quarter of the 1900s, tests of labeling’s causal effects yielded mixed results (Bazemore, 1985; Klein, 1986; Kubrin et al., 2009; Morash, 1982; Palamara, Cullen, & Gersten, 1986; Shannon, 1982; Thomas & Bishop, 1984; Ward & Tittle, 1993). This resulted in two responses by criminologists. One involved rejecting labeling theory, the other extending the perspective.

The first response was to conclude that criminal justice labeling has “no effects” (Hirschi, 1975, p. 198), thus making the perspective irrelevant as a theory of criminal behavior. If this view is accurate, then it means that state intervention neither deepens criminality (as the labeling theorists have claimed) nor deters criminality (as advocates of punishment have asserted) (Thomas & Bishop, 1984). It also suggests that the sources of why people experiment with crime, become chronic offenders, or recidivate after incarceration are to be found not in the operation of the criminal justice system but rather in the social forces that impinge on offenders in their everyday lives (as traditional criminologists have argued). Phrased differently, people become criminals because they live in disorganized areas, lack controls, learn criminal values, and are under strain. Only after they become deeply involved in crime are they arrested and imprisoned. State intervention is thus a reaction to criminal involvement, not a cause of it. Labeling effects are negligible.

The second response was to suggest that the studies’ mixed results may occur because the effect of labeling varies under different circumstances. It may well be that labeling’s overall effect is unclear because researchers have yet to disentangle the conditions under which contact with the criminal justice system increases or diminishes commitment to crime (Palamara et al., 1986; Tittle, 1975a). At present, research has addressed in only a rudimentary way how vulnerability to criminal labels might vary by factors such as individual sociodemographic characteristics, stage in a criminal career, family strength, and neighborhood context. Until these empirical issues are settled more definitively, general statements about labeling effects remain premature (see also Nagin, Cullen, & Jonson, 2018; Paternoster & Iovanni, 1989).

Indeed, the complexity of labeling can be seen in experimental studies assessing how police officers’ mandatory arrest of batterers influences subsequent episodes of domestic violence (Sherman, 1992). Although the finding and its interpretation still must be viewed tentatively, the research suggests that the impact of arrest—or of labeling—varies according to whether batterers are employed. Perhaps because their economic well-being and “stake in conformity” are threatened, those who are working are less likely to recidivate after arrest. By contrast, arrest appears to escalate incidents of abuse among batterers who are unemployed and, therefore, have weak bonds to conventional society (Sherman, 1992).

Notably, these kinds of insights helped to move scholars to develop theories that explored the differential effects of labeling. In this regard, Braithwaite’s (1989) shaming theory and Sherman’s (1993) defiance theory are presented later in this chapter. They focus in particular on how the quality of the state intervention—whether it is reintegrative or stigmatizing and disrespectful—can evoke either conformity or greater criminality.

In recent years, it is notable that labeling theory is enjoying a resurgence of interest and growing empirical support (see Farrington & Murray, 2014). These works do not claim that state intervention is the major cause of crime, but they do propose that it is a criminogenic risk factor—that is, that it is one factor that contributes to continued criminal involvement.

Thus, in a meta-analysis of 29 experimental studies, Petrosino, Turpin-Petrosino, and Guckenburg (2010) calculated that juvenile justice processing has no crime control effect and that “almost all the results are in the negative direction” (p. 6). In short, arresting and processing juveniles, as opposed to diverting them out of the system or into services, increased delinquent involvement. Similar results have been found using data from the longitudinal Rochester Youth Development Study. Analyses revealed that official intervention (arrest, involvement in the juvenile justice system) results in greater delinquency in the short term (mainly by increasing involvement in deviant groups, such as gangs) and, in the longer term, in greater crime in early adulthood (mainly by decreasing educational achievement and employment) (Bernburg & Krohn, 2003; Bernburg, Krohn, & Rivera, 2006; Krohn et al., 2014). Similar iatrogenic results of juvenile justice processing were reported by Gatti, Tremblay, and Vitaro (2009) using a sample of 779 disadvantaged Montreal youths and by Liberman, Kirk, and Kim (2014) using a sample of 1,249 Chicago youths (see also Kirk & Sampson, 2013).

Chiricos, Barrick, Bales, and Bontrager (2007) examined the fate of more than 95,000 adult men and women convicted of a felony and facing probation. This is a unique study because the labeling condition was created by a Florida law that allows judges not to assign a formal felony label to guilty offenders. In essence, the felony label is withheld:

The consequence of this unique labeling event is that offenders who are equivalent in terms of factual guilt can either be labeled a convicted felon or not. For those offenders who have adjudication withheld—about half of the felony probationers in Florida in recent years—no civil rights are lost and such individuals may legitimately say on employment applications and elsewhere that a felony conviction did not occur. For those offenders who are formally adjudicated, all of the structural impediments of being a convicted offender are possible. (Chiricos et al., 2007, p. 548, emphasis in original)

In support of labeling theory, Chiricos et al. found that “being adjudicated a felon significantly and substantially increases the likelihood of recidivism in comparison with those who have had adjudication withheld” (p. 570). Differential labeling effects also were detected, with Whites, women, and those with no prior conviction before age 30 most affected by the assignment of a felony status. As Chiricos et al. note, these groups typically are less at risk of recidivating. If so, then then this result is consistent with the labeling theory notion that state intervention applied to “primary deviants” is likely to be especially criminogenic.

Research on the effects of imprisonment also lends support to labeling theory. It is a remarkable oversight by criminologists that, despite having an inmate population in the United States of more than 2.1 million, studies on how the prison experience affects recidivism are relatively few in number and often methodologically suspect (Mears, Cochran, & Cullen, 2014; Nagin, Cullen, & Jonson, 2009). Still, useful investigations have been undertaken in different nations and are becoming more common (see, e.g., Aizer & Doyle, 2015; Bales & Piquero, 2012; Chen & Shapiro, 2007; Cid, 2009; Cochran, Mears, & Bales, 2013; Listwan et al., 2013; Loeffler, 2013; Mears & Cochran, 2018; Mears, Cochran, Bales, & Bhati, 2016; Mitchell, Cochran, Mears, & Bales, 2017; Nieuwbeerta, Nagin, & Blokland, 2009; Petersilia & Turner, 1986; Sampson & Laub, 1993; Smith, 2006; Snodgrass, Blokland, Haviland, Nieuwbeerta, & Nagin, 2011; Spohn & Holleran, 2002). They allow for three general conclusions, the first of which is most firmly established and important (for summaries of research, see Cullen, Jonson, & Nagin, 2011; Gendreau, Goggin, Cullen, & Andrews, 2000; Jonson, 2010, 2013; Lipsey & Cullen, 2007; Nagin et al., 2009; Villetez, Gillieron, & Killias, 2015; Villettaz, Killias, & Zoder, 2006). Again, these conclusions are consistent with the core proposition of labeling theory that state intervention risks increasing, rather than decreasing, criminal involvement.

First, overall, a custodial sanction versus a noncustodial sanction either has a null effect or is criminogenic, especially for low-risk offenders. Second, length of time spent in prison is inconsistently related to recidivism; at most, its deterrent effects are weak, but longer terms also may increase criminal involvement under some conditions. Third, the harsher the prison living conditions are, the higher the rate of reoffending is likely to be. Notably, these findings are contrary to the predictions of conservative criminologists favoring “get tough” policies and of specific deterrence theorists (see Chapters 12 and 13). In both instances, these scholars link more punishment, especially imprisonment, with less recidivism—a conclusion the data do not support.

Again, showing that incarceration has an effect on recidivism is not the same as contending that it is the main factor in explaining stable involvement in crime; other factors matter and matter more than confinement. At the same time, given that millions of Americans spend some time in prison during their lives (Pattillo et al., 2004), even a modest criminogenic effect of the prison sanction could have a meaningful impact on public safety.

Beyond crime control policy, the recent research on labeling theory leads to two further points. First, the consistent findings favoring labeling theory suggest that the role of state intervention in causing crime cannot be dismissed. As it becomes more common to conduct longitudinal studies that follow offenders across their lives, it would be inexcusable to ignore the consequences of a key social experience of career offenders: arrest and incarceration. Life-course theories should thus strive to incorporate imprisonment into their models (for an example, see Sampson & Laub, 1993). Further, the challenge ahead for labeling theorists is to specify more carefully how different types of state intervention impact the lives of different types of offenders, especially those low and high in their risk of recidivating. Societal reaction is a complex process, and its effects have yet to be fully unpackaged so that it can be truly understood (Cullen & Jonson, 2014; Mears et al., 2014; Sherman, 2014). We return to this issue later in the chapter when we discuss contemporary extensions of labeling theory.

Labeling Theory in Context

A central theme informing this book is that changes in society expose people to new experiences, which in turn prompt them to think differently about many issues, including crime. The 1960s were just such a period when social change gripped the United States and caused citizens and criminologists alike to take stock of their previous assumptions about criminal behavior (Sykes, 1974). We saw in Chapter 5, for example, that the tumultuous context of the 1960s sensitized some scholars to the importance of controls in constraining human conduct. In Chapter 8, we will see how that decade’s events radicalized other scholars and led them to assert that crime and criminal justice were intimately shaped by the conflict and inequities inherent in capitalism. More relevant to our present concerns, we can recall that the 1960s also proved to be fertile ground for the growth of labeling theory (Cole, 1975).

Why did many criminologists suddenly embrace the notion that state intervention through the criminal justice system was the principal cause of the crime problem? In the absence of strong empirical evidence, why did labeling propositions, voiced earlier by Tannenbaum (1938) and Lemert (1951), suddenly strike a chord and seem sensible to so many scholars?

The key to answering these questions, we believe, lies in understanding how the prevailing context led many people to lose trust or confidence in the government. During the early 1960s, optimism ran high. As noted in Chapter 4, the Kennedy administration instilled the expectation that a “New Frontier of equal opportunity” was within reach; a “Great Society” was possible that would eliminate poverty and its associated ills such as crime. Moreover, this agenda reaffirmed the Progressives’ belief that the government should play a central role through social programs in effecting this change. The state could be trusted to do good.

But as the 1960s unfolded, this optimism declined, eventually turning to despair as the bold promises made at the decade’s start went unfulfilled (Bayer, 1981; Empey, 1979). Thus, the civil rights movement not only laid bare the existence of pernicious patterns of racism, sexism, and class inequality but also revealed the inability, if not the unwillingness, of government officials to address these long-standing injustices. The war in Vietnam raised other concerns. Although the use of U.S. troops was justified as necessary to protect democracy, this policy lost its moral value as many citizens perceived the United States as merely propping up a corrupt regime. More disquieting, however, was the government’s response to political protest. The United States witnessed not only demonstrators being chased and beaten by police but also students being gunned down at Kent State University. The Attica riot, in which troopers storming the prison fatally wounded 29 inmates and 10 guards being held hostage, confirmed the state’s proclivity to abuse its power in the suppression of insurgency. The state’s moral bankruptcy seemed complete with the disclosure of the Watergate scandal, which showed that corruption not only penetrated but also pervaded the government’s highest echelons (Cullen & Gilbert, 1982).

In short, the state faced what commentators have called a “legitimacy crisis” (Friedrichs, 1979) or a “confidence gap” (Lipset & Schneider, 1983); citizens no longer trusted the motives or competence of government officials. Such feelings spread and intensified as the 1960s advanced and turned into the 1970s, and they created a context ripe for harvesting the ideas of labeling theorists who blamed the state for the crime problem. Due to their social experiences, it now made sense to many criminologists, policy makers, and members of the public that government officials would label the disadvantaged more than the advantaged and would operate prisons, such as Attica, that drove offenders deeper into crime. Accordingly, labeling theory won wide support and offered a stiff challenge to traditional theories of crime. The stage was set, moreover, for a reexamination of existing crime control policies.

THE CONSEQUENCES OF THEORY: POLICY IMPLICATIONS

Labeling theory, Empey (1982) observed, “had a profound impact on social policy” (p. 409). As the ranks of the perspective’s proponents swelled, an increasingly loud warning was sounded that pulling offenders into the criminal justice system only exacerbated the crime problem. The prescription for policy change was eminently logical and straightforward: If state intervention causes crime, then steps should be taken to limit it (Schur, 1973).

But how might this be accomplished? As Empey (1982) noted, labeling theorists embraced four policies that promised to reduce the intrusion of the state into offenders’ lives: decriminalization, diversion, due process, and deinstitutionalization. These four reforms were implemented to different degrees and with uneven consequences. Even so, the agenda identified by labeling theory to this day remains an important vision of the direction that criminal justice policy should take.

Decriminalization

Labeling theorists insisted that the “overreach of the criminal law” constituted a critical public policy problem (Morris & Hawkins, 1970, p. 2; Schur, 1965; Schur & Bedeau, 1974). Thus, the criminal justice system traditionally has been used to control not only threats to life and property but also a range of “victimless crimes” (e.g., public drunkenness, drug use, gambling, pornography) and juvenile status offenses (e.g., truancy, promiscuity). The morality of these behaviors might be open to debate, theorists admitted, but using the criminal law as a means of control is an “unwarranted extension [that] is expensive, ineffective, and criminogenic” (Morris & Hawkins, 1970, p. 2).

Edwin Schur, for example, argued that the criminalization of victimless deviance, such as drug use, creates crime in various ways (Schur, 1965; Schur & Bedeau, 1974). First, the mere existence of the laws turns those who participate in the behavior into candidates for arrest and criminal justice processing. Second, it often drives them to commit related offenses, such as when drug addicts rob to support their habits. Third, by prohibiting the legal acquisition of desired goods and services, criminalization creates a lucrative illicit market, the operation of which fuels the coffers of organized crime. Finally, the existence of such illicit exchanges fosters strong incentives for the corruption of law enforcement officials, who are enticed through payoffs to “look the other way.”

Accordingly, labeling theorists argued for the prudent use of decriminalization—the removal of many forms of conduct from the scope of the criminal law. This policy might involve outright legalization or treating the acts much like traffic violations (e.g., speeding) for which penalties are limited to minor fines. In any case, the goal was to limit the law’s reach and thus to reduce the extent to which people were labeled and treated as criminals.

The policy of decriminalization evoked much debate and encouraged some significant legal changes. Abortion was legalized by a U.S. Supreme Court decision, possession of small amounts of marijuana frequently was reduced to a minor violation, the criminal status of pornographic material was left to local communities to decide, forms of gambling (e.g., state-run lotteries and casinos) were legalized, and status offenses were made the concern of social welfare agencies. These changes did not occur across all states, however, and other forms of behavior remained illegal. Especially noteworthy, the most controversial of the labeling theorists’ policy proposals—the call to decriminalize all forms of drug use—fell on deaf ears. Indeed, an enormous campaign—a “war”—was launched to stop the flow of drugs and to place those participating in this illicit market behind bars (Currie, 1993; Inciardi, 1986).

In the past decade, however, the wisdom of this policy has come under attack. Elected officials of both political parties have worried about the cost of incarcerating large numbers of drug offenders for years on end. They also have been increasingly troubled by the disproportionate impact of drug laws on African Americans, in terms of both arrests and imprisonment. Especially in the area of marijuana, efforts have been made to decriminalize drug use. In 29 states and the District of Columbia, marijuana is legal for medical usage. In 2012, two states—Colorado and Washington—legalized the drug for recreational purposes (Governing the States and Localities, 2014). By 2018, this number had grown to nine states, adding Alaska, California, Maine, Massachusetts, Nevada, Oregon, and Vermont (Robinson, Berke, & Gould, 2018).

Further legalization seems inevitable, even though in January 2018, U.S. Attorney General Jeff Sessions reversed the policy of the Obama administration not to prosecute, in states where legalization had occurred, violations of federal law prohibiting the use and sale of cannabis. Sessions’s decision opened up the possibility that federal prosecutors “could crack down on marijuana-related offenses in their district as they see fit” (Wogan, 2018). Still, public opinion is clearly trending in the opposite direction. In 2013, a Gallup poll revealed for the first time that a clear majority of the American public (58%) favored legalizing marijuana, with two thirds (67%) of those 18 to 29 favoring legalization (Swift, 2013). These views now seem stable. Thus, a 2018 poll by the Pew Research Center reported that 61% of the respondents endorsed legalization, with this statistic reaching 70% among Millennials (Geiger, 2018). Whether support will materialize for decriminalizing other “harder” types of drugs seems unlikely at this time. Still, in 2001, about 2 in 3 Americans opposed the legalization of marijuana, suggesting that public opinion in this area is dynamic, not static (Swift, 2013). Accordingly, continuing to employ the criminal law to control illicit substances in general may be reexamined in the years ahead.

Diversion

Given that laws exist and offenders come to the attention of law enforcement officials, how should the criminal justice system respond? Labeling theorists had a ready answer: diversion. For juveniles, as Empey (1982) indicated, this policy might entail taking youths from the province of the juvenile court and placing them under the auspices of “youth service bureaus, welfare agencies, or special schools” (p. 410). For adults, it might involve releasing them to privately run mental health agencies, community substance abuse programs, or government-sponsored job training classes. Diversion also might involve the substitution of a less severe intervention such as when offenders are “diverted” from prison and instead placed in the community under “intensive probation supervision” or under “home incarceration” (Ball, Huff, & Lilly, 1988; Binder & Geis, 1984; Latessa, 1987; Porter, 2011).

Diversion programs became widespread during the past several decades, a development that can be traced, at least in part, to the persuasive writings of labeling theorists (Klein, 1979). The current inmate crowding problem, moreover, is furnishing fresh incentives for jurisdictions to establish diversion programs that will help to empty their prisons and jails. The popularity of diversion, however, has given labeling theorists little cause for celebration.

Originally conceived as an alternative to involvement in the criminal justice system or to incarceration, it has been claimed that diversion programs most often have functioned as add-ons to the system. That is, participants in programs have not been those who would have stayed in the system or gone to jail but rather those who previously would have been released, fined, or perhaps given suspended sentences. Ironically, the very policy suggested by labeling theorists to lessen state intervention has had the effect of increasing that intervention: Diversion has “widened the net” of state control by creating a “system with an even greater reach” (Klein, 1979, p. 184; see also Binder & Geis, 1984; Frazier & Cochran, 1986).

One recent development, however, seems to hold some promise: drug and other specialty courts. To address the increasing numbers of drug offenders, the cost of their imprisonment, and the failure to cut their recidivism, more than 2,100 “drug courts” have been implemented in the United States. These courts divert drug offenders, typically without records of serious criminal involvement, into treatment programs, with the chance of having their current charges dismissed (Mitchell, 2011). Evaluation evidence exists that this intervention is successful in reducing recidivism, and thus of breaking the drug-imprisonment cycle (Cullen, 2013; Mitchell, 2011). Notably, specialty courts are now emerging to divert other types of offenders from the regular criminal justice system, including for the mentally ill, domestic partners engaged in violence, intoxicated drivers (DWI), the homeless, and military veterans (Cullen, 2013).

Due Process

Labeling theorists also were quick to join the mounting due process movement, which sought to extend to offenders legal protections (e.g., right to an attorney, right not to be searched illegally). As Empey (1982) pointed out, although labeling theory did not prompt the concern for offender rights, the perspective and the concern for due process had a common source: “Both were part of the growing distrust of governmental and other institutions in the 1960s” (p. 410).

Labeling scholars’ call for expanding due process was tied up with their critique of the “rehabilitative ideal.” As noted in Chapters 2 and 3, reforms during the Progressive Era had provided criminal justice officials with enormous discretion to effect the individualized treatment of offenders. Such discretionary powers were unbridled in the juvenile court, where the state was trusted to “save children” by acting as a “kindly parent” (Platt, 1969; Rothman, 1978, 1980). Labeling theorists, however, accused state officials of abusing this trust. Individualized treatment, they claimed, was merely a euphemism for judicial decisions that discriminated against the powerless and for parole board decisions that denied release to inmates who dared to resist the coercive control of correctional officials.

The solution to this situation was clear. Schur (1973) urged that “individualized justice must give way to a return to the rule of law” (p. 169, emphasis in original). The worst abuses must be curbed by an extension of constitutional protections, particularly to juveniles who had been blindly left in the hands of the state. Labeling theorists, moreover, embraced what amounted to the principles of the classical school: Punishments should be prescribed by law, and sentences should be determinate. Accordingly, discretionary abuse would be eliminated: Judges would be forced to sentence according to written codes and not according to whim, and determinate sentences with set release dates would replace parole decision making.

Labeling theorists hoped that these policies would result in shorter and more equitable sentences and thus would reduce the extent and worst effects of state intervention. This blind faith in the rule of law, however, has proven to be a mixed blessing. On the one hand, due process has provided offenders with needed protections against state abuse of discretion. On the other hand, the corresponding attack on rehabilitation failed to create a system less committed to interventionist policies and more committed to humanistic ideals (Cullen, 2013; Cullen & Gilbert, 1982, 2013). As we will see in Chapter 12, a mean season in corrections gripped crime control policy since the 1970s leading to mass incarceration in the United States—an era that is just now showing signs of abating.

Deinstitutionalization

Finally, labeling theorists took special pains to detail the criminogenic effects of incarceration and to vigorously advocate the policy of lessening prison populations through deinstitutionalization. The time had come, they insisted, for a moratorium on prison construction and for the move to a system that corrected its wayward members in the community.

This proposal received a stunning test in 1972 when Jerome Miller, commissioner of Massachusetts’s Department of Youth Services, took the bold action of closing the state’s major juvenile facilities and placing youths in community programs (Empey, 1982; Miller, 1991). Only a small number of youths remained in secure detention (Klein, 1979). Significantly, a subsequent evaluation revealed that recidivism rates were only slightly higher after the institutions were emptied. More instructive, the researchers found that in those sections of the state where the reform was pursued enthusiastically through the creation of “a large number of diverse program options so that the special needs of each youth could be more nearly met,” the recidivism rates were lower than before Miller’s deinstitutionalization policy was implemented. The researchers termed these results “dramatic” (Miller & Ohlin, 1985, p. 70; see also “Deinstitutionalization,” 1975).

One might have expected that these empirical results would cause policy makers in other states to consider the wisdom of making a community response to crime rather than an institutional one. But as we have noted, policy decisions are based less on research and more on what seems sensible and politically feasible. Starting in the last quarter of the 20th century, the tenor of American society changed and new ways of thinking emerged emphasizing increased punitive interventions with offenders (Wilson, 1975). Not surprisingly, policies reflected this change in thinking, which led policy makers to abandon the idea of deinstitutionalization and instead to incarcerate offenders in unprecedented numbers.

Importantly, in part fueled by shrinking government revenues during the Great Recession starting in 2008 (Aviram, 2015), the widespread use of “get tough” rhetoric among politicians of both political parties diminished and states implemented policies that rolled back prison populations or slowed their growth (Petersilia & Cullen, 2015). (We discuss these issues further in Chapter 12.) In fact, “downsizing” was now a word added to the correctional vocabulary, and decarceration policies earned popular support among the American public (see, e.g., Sundt, Cullen, Thielo, & Jonson, 2015; Thielo, Cullen, Cohen, & Chouhy, 2016).

Most instructive is the California experience with decarceration, a state that had embraced the policy of incarceration and had invested heavily in prisons (Simon, 2014). A 2011 U.S. Supreme Court ruling in Brown v. Plata found the crowding in California’s prisons to violate the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment and, in effect, mandated the release of tens of thousands of inmates. California subsequently embarked on a policy called “realignment,” which was evaluated by Jody Sundt and her colleagues. They noted that within 15 months, this policy had lowered prison populations by 27,527, with a cost savings of $453 million. But did such deinstitutionalization endanger public safety? Similar to the Massachusetts experience with juveniles four decades earlier, Sundt, Salisbury, and Harmon’s (2016) evaluation concluded that realignment had virtually no enduring effect on crime in California. Neither property nor violent offenses increased for the three years studied (2012–2014). When offenses were disaggregated, they could find only that auto theft initially rose, but even this increase decayed to original levels.

EXTENDING LABELING THEORY

During recent decades, advocates of “get tough” criminal justice policies have shown remarkable hubris in making grand and typically unsupported claims for the ability of punishment to deter offenders. They have endorsed efforts to increase surveillance on offenders in the community (e.g., electronic monitoring, intensive supervision) and have endorsed efforts to increase the harshness of imprisonment (e.g., longer sentences, more ascetic living conditions) (Irwin, 2005; Irwin & Austin, 1994; Pattillo et al., 2004; Whitman, 2003). Of course, such attempts to heighten state intervention in the lives of offenders are antithetical to labeling theory, which would predict that these policies would only increase criminal behavior.

Contemporary criminologists often question the wisdom of this massive attempt to inflict more control and pain on offenders (Clear, 1994; Currie, 1998b; Pattillo et al., 2004). Other criminologists, however, recognize that under certain circumstances, criminal justice sanctions might reduce recidivism—a possibility fully discounted by labeling theory. At the same time, they also assert that such punishments, as typically applied in the criminal justice system, are likely either to have no effect or, consistent with labeling theory, to amplify criminal involvement. The key issue is not simply whether a sanction is applied but also the quality of the sanction—what actually happens to an offender during the criminal justice process. As Sherman (2000) noted, “The major failing of the science of sanction effects has been the assumption that all sanctions were alike in quality, varying only in quantity” (p. 6). Notably, three important attempts have been made to develop a theory of how the quality of sanctioning affects reoffending: Braithwaite’s (1989) theory of shame and reintegration, Sherman’s (1993) defiance theory, and Tyler’s (2003, 2009) procedural justice theory. These perspectives occupy our attention next.

In addition, Rose and Clear (1998) have called attention to the way in which mass incarceration can have macro-level or community-level effects on crime. In so doing, they extend labeling theory by showing how, beyond the effects on individuals, state sanctions can have the unanticipated consequences of creating criminogenic conditions within neighborhoods. Their coerced mobility theory is also presented below.

Braithwaite’s Theory of Shaming and Crime

In Crime, Shame, and Reintegration, John Braithwaite took up the issue of the conditions under which societal reaction increases crime (as labeling theorists contend) or decreases crime (as advocates of punishment predict). Legal violations evoke formal attempts by the state and informal efforts by intimates and community members to control the misconduct. Central to social control is what Braithwaite (1989) called shaming, which he defined as “all processes of expressing disapproval which have the intention or effect of invoking remorse in the person being shamed and/or condemnation by others who become aware of the shaming” (p. 9).

Shaming comes in two varieties—reintegrative and disintegrative—and each has a different impact on recidivism. Consistent with labeling theory, Braithwaite (1989) argued that disintegrative shaming stigmatizes and excludes, thereby creating a “class of outcasts” (p. 55). The offender not only is castigated for his or her wrongdoing but also is branded as a criminal who is beyond forgiveness and unworthy of restoration to membership in the community. As labeling theory warns, the result is further entrenchment in crime. The offender is denied employment and other legitimate opportunities to bond with conventional society and, consequently, joins with other outcasts in creating and participating in criminal subcultures.

But shaming also can be reintegrative. In these instances, an illegal act initially evokes community disapproval but then is followed by attempts “to reintegrate the offender back into the community of law-abiding or respectable citizens through words or gestures of forgiveness or ceremonies to decertify the offender as deviant” (Braithwaite, 1989, pp. 100–101). There is a stick followed by a carrot—condemnation followed by community responses aimed at binding the offender to the social order. In this case, shaming has two faces: It makes certain that the inappropriateness of the misconduct is known to the offender and all observers, and it presents an opportunity to restore the offender to membership in the group. This combination, Braithwaite argued, reduces crime by exerting greater control over offenders and by not setting in motion the criminogenic processes caused by stigmatization and social exclusion.

Braithwaite (1989) extended labeling theory not only by delineating types of shaming or societal reaction but also by observing that the underlying social context determines the degree to which shaming will be reintegrative or disintegrative. In communitarian societies such as Japan, “individuals are densely enmeshed in interdependencies which have the special qualities of mutual help and trust” (p. 100). As might be expected, in this context shaming is reintegrative and produces low crime rates.

In the United States, however, communitarianism is weakened by urbanization, racial and ethnic heterogeneity, extensive residential mobility, and a strong ideology of individualism. As a consequence, America lacks the cultural and institutional basis that would encourage seeing offenders as part of an interdependent community. Thus, social control has a strong disintegrative quality: Lawbreakers are marked indelibly as ex-offenders and are provided with few avenues to reestablish full societal membership. This stigmatization creates a class of outcasts who individually turn to crime and who collectively develop criminal subcultures and illegal opportunity structures. The result, Braithwaite claimed, is that America is burdened with a high rate of lawlessness.

In summary, Braithwaite enriched labeling theory by illuminating not only that shaming (or labeling) varies in its nature and effects but also why this variation ultimately is contingent on the society in which shaming takes place. The empirical adequacy of Braithwaite’s contentions remains to be convincingly demonstrated. Braithwaite, Ahmed, and Braithwaite (2006) have marshaled evidence from an array of quantitative and qualitative sources that is consistent with the theory (e.g., studies of parenting, corporate regulation, and restorative justice programs) (see also Braithwaite, 2002; Makkai & Braithwaite, 1991). Studies that employ surveys to measure reintegrative shaming and then assess its impact on self-reported delinquency—the methodological approach most often used to test criminological theories—are still in short supply (Ahmed & Braithwaite, 2004; Hay, 2001; Tittle, Bratton, & Gertz, 2003). This research has yielded promising but mixed results. One finding of potential consequence is that measures of reintegration and of shaming tend to have main (or independent) effects on outcomes. As Braithwaite et al. (2006) have observed, the “need to break down different elements of reintegrative shaming to see which are theoretically crucial and which are not should be an exciting challenge to criminologists in the survey research tradition” (p. 410).

Sherman’s Defiance Theory

Sherman (1993) began with the observation that labeling theory “does not account for the many examples of sanctions reducing crime” (p. 457). At the same time, he realized that there also are many examples in which sanctions increase crime. Given these seemingly opposed realities, Sherman noted that there is a pressing need for a theory of the criminal sanction that will address the question, “Under what conditions does each type of criminal sanction reduce, increase, or have no effect on future crimes?” (p. 445; for a broader statement of the theory, see Sherman, 2010).

Sherman’s (1993) central concept is that of defiance, which he defined as the “net increase in the prevalence, incidence, or seriousness of future offending against a sanctioning community caused by a proud, shameless reaction to the administration of a criminal sanction” (p. 459). A key insight is that when offenders are treated unfairly or with disrespect by police officers and/or the court, or when they perceive such mistreatment, they are likely to act defiantly. In such cases, criminal sanctions are not given legitimacy by offenders and are incapable of bringing about their intended effect of reducing crime. If anything, by provoking defiance, they cause offenders to assert their anger and autonomy by flouting the law and recidivating. There is some empirical evidence to support this thesis (Paternoster, Brame, Bachman, & Sherman, 1997; Sherman, 2000).

But Sherman understood that defiance does not inevitably follow from unjust treatment—or from what Braithwaite would call stigmatizing shaming. Three factors, in particular, are seen as increasing the risk that disrespect and unfairness will prompt increased offending. First, when offenders have few social bonds to the community, there is little to restrain their defiance and arising criminal inclinations. Second, consistent with Braithwaite, offenders are more likely to be defiant when they perceive the sanction as stigmatizing not their actions but rather the offenders personally. Third, when offenders deny or refuse to acknowledge the stigmatizing shame that has been imposed on them, they are more likely to respond with pride and use crime to exact revenge on conventional society. Empirical tests of these propositions remain in short supply. The dearth of research is likely because existing data sets do not contain measures of the theory’s key components. The studies that have been undertaken show mixed support for the perspective (Bouffard & Piquero, 2010; see also Sherman, 2014).

Regardless, the value of Sherman’s work is that it shows that criminal sanctions can backfire and, through processes such as defiance, create the kind of self-fulfilling prophecy first identified by labeling theorists. The theory’s implications are especially disquieting because many offenders targeted for searches and arrest by police are youths who come from “street families” (recall Anderson’s [1999] “code of the street” discussed in Chapter 3). As Sherman (2000) noted, these adolescents are likely to be treated with little respect and might act in ways that will provoke harsh responses from police officers. They also are likely to have weak social bonds and a “code” that accords little legitimacy to conventional attempts to “disrespect” them. This might be one reason why police interactions with inner-city minority youths are potentially volatile: The conditions are conducive to defiance. More generally, Sherman’s theory would predict that unless considerable attention is paid to the quality of relationships between inner-city youths and criminal justice representatives (e.g., police, judges, probation officers), attempts to sanction these youngsters might well prove to be counterproductive, fostering defiance and not deterrence.

Tyler’s Procedural Justice Theory

As Tyler (2003) notes, police and court officials have two concerns in their work. First, when in the midst of exercising their authority—such as a domestic violence incident—they want those with whom they are interacting to comply with their directives (e.g., stop beating spouse) and not to engage in this behavior in the future. Second, they want the public in general both to obey the law that “tells people not to speed, not to run red lights, and not to murder their neighbor” and to cooperate with police to fight crime (e.g., informing on known offenders) (Tyler, 2003, p. 284). Tyler (2009) rejects deterrence as a largely ineffective and costly way of trying to have people follow and support the law. This approach depends on coercion and fear. A preferable alternative is to have individuals engage in “self-regulations” and display a “willingness to accept the constraints of the law and legal authorities” (2003, p. 284).

Why would people voluntarily comply with criminal justice authorities and legal mandates? Similar to what Hirschi (1969) argued with the social bond of belief, they would have to see the law as legitimate. If they considered the criminal justice system to be oppressive, unjust, and unresponsive, they would lose faith in the law and descend into what scholars (see Chapter 3) have called “legal cynicism” (Kirk & Papachristos, 2015). For Tyler (2003, p. 284), belief in the legitimacy of the system is produced by the quality of the actions experienced directly or vicariously by police and court officials. Allocating legitimacy is thus a subjective judgment based on how people evaluate the actions taken by state agents of social control. In essence, then, Tyler’s model argues that criminal justice intervention, through its impact on perceived legitimacy, can lead to more or less compliance with the law.

For Tyler, the key quality that determines whether state intervention will increase or decrease legal compliance—that is, crime—is whether the actions of police and court officials manifest “procedural justice.” Essentially, if officials are fair and respectful when making decisions, people will see the actions as legitimate and comply with the law. But if officials are “jerks”—yell, demand silence, assume an aggressive posture, act arbitrarily, and are condescending—then people will tend to become uncooperative and will attenuate their belief in the law (see Sherman, 1993). Tyler (2009) describes the issue thusly:

Procedural justice includes two issues: fair decision making (voice, neutrality)—i.e., participatory, neutral, transparent, rule based, consistent decision-making—and fair interpersonal treatment (treatment with dignity/respect; trust in authorities)—i.e., treatment involving respect for people; respect for their rights; treatment with dignity and courtesy; care and concern from authorities. (p. 319, emphasis added)

The issue of procedural justice has emerged as a central theory and reform effort within contemporary policing. Starting in the 1980s and 1990s, law enforcement agencies increasingly abandoned reactive in favor of proactive policing strategies (McManus, Schafer, & Graham, 2019). Crime mapping revealed that offenses were concentrated disproportionately at certain places within inner-city areas, sometimes referred to as “hot spots” (Sherman, Gartin, & Buerger, 1989). In response, departments allocated resources to work proactively to prevent crime from occurring in these locations (Weisburd & Braga, 2006). Under names such as “broken windows policing” and “focused deterrence,” officers policed aggressively so as to decrease social disorder and deter the wayward. These strategies arguably had positive effects (see Zimring, 2012) but came at a cost of differentially policing minorities, especially young, Black males subjected to racial profiling and stop-and-frisk actions. As noted, videos of unarmed African Americans being shot or roughed up have exacerbated complaints about police bias and precipitated the Black Lives Matter movement (McManus et al., 2019).

In response, police scholars and leaders have advocated the use of procedural justice as a means of tempering the negative labeling effects of proactive policing in high-crime areas (McManus et al., 2019). Although still a growing area of research, existing studies suggest that procedural justice is effective in increasing perceived legitimacy and positive views of the police (Donner, Maskaly, Fridell, & Jennings, 2015; McManus et al., 2019; Mazerolle, Bennett, Davis, Sargeant, & Manning, 2013). It remains to be seen, however, if procedural justice has a meaningful impact on individual recidivism or crime in minority communities, though some promising results have appeared (see, e.g., McLean & Wolfe, 2016; Paternoster et al., 1997; Penner, Viljoen, Douglas, & Roesch, 2014; Reisig & Mesko, 2009).

Rose and Clear’s Coerced Mobility Theory

Labeling theory has been primarily a theory of how state punishment has the unanticipated consequence of increasing, if not stabilizing, the criminality of individuals. Dina Rose and Todd Clear (1998), however, elevate the perspective from individuals to the community (for a more complete discussion, see Clear, 2007). Their project is to explore what happens when the government adopts a policy of mass incarceration that disproportionately removes young, minority males from inner cities. As Rose and Clear (1998, pp. 450–451) point out, it is estimated that nearly 1 in 10 African American, underclass males between the ages of 26 and 30 are currently imprisoned and that nearly 3 in 10 Black men will spend time in a state or federal prison during their lifetime (see also Mauer, 1999; Tonry, 1995). They conceptualize this incarceration as a form of coerced mobility—a practice that regularly takes large numbers of males out of inner-city communities for prolonged absences (see also Clear, 2002).

As noted, labeling theory is counterintuitive because it suggests that efforts to achieve social control can backfire in unexpected ways (Hagan, 1973). In this case, Rose and Clear theorize that the mass coerced mobility of minority males may well have the unanticipated consequence of increasing, rather than decreasing, a community’s crime rate. This thesis is counterintuitive because it would seem that locking up predatory criminals would make inner-city neighborhoods safer. In fact, DiIulio (1994, p. 23) has claimed that incarcerating such offenders is, in essence, a form of social justice that would “save Black lives.” Rose and Clear (1998, p. 441) are not naïve to this reality; they realize that it is hard to comprehend how it can “be bad for neighborhood life to remove people who are committing crimes in those very neighborhoods.” Still, when the incarceration is massive and concentrated in vulnerable communities, then it may become a macro-level force that undermines existing social institutions in such a way as to produce more, rather than less, social disorganization and conditions conducive to crime. Theoretically, they are suggesting that incarceration might have a feedback loop that causes disorganization; if so, then their thesis is a notable extension of social disorganization theory, calling attention to an important source of a neighborhood’s ability to achieve organization and social control.

For Rose and Clear (1998), offenders are community liabilities (e.g., victimizers, often less than ideal parents), but they also are community assets (e.g., producers of income, supporters of families, parents, members of social networks). Their incarceration thus lessens liabilities (as is often recognized), but it also depletes the community of assets (as is often not recognized). The impact on neighborhoods will differ by the area’s affluence and existing level of social organization. In stable working-class and middle-class communities, the incarceration of a limited number of resident-offenders is likely a social benefit. But in underclass neighborhoods, the overuse of prisons—high levels of incarceration year after year after year—risks depleting the area of resources it desperately needs and of weakening core social institutions. Incarceration thus has differential impacts depending on its magnitude and on the nature of the neighborhood.

Consider, for example, the impact of incarceration on family stability. Offenders typically earn money both legally and illegally and, although not always reliable providers, are a source of income for their partners and children. When they are incarcerated, family life is often disrupted, which contributes to social disorganization. Lacking income, families frequently change addresses, move into different school districts, and go on public assistance. Mothers have less time to supervise their children. And new males, not the children’s fathers, may enter the household, creating more instability. On a broader level, the coerced mobility of offenders to prison means that a substantial portion of the community’s male population spends years out of the labor market and builds little human capital. Their job prospects upon reentry are limited (Holzer, Raphael, & Stoll, 2004). As a result, the “marriage pool” of males in the area—consisting of ex-prisoners with few marketable skills—is unattractive, leading women to forgo marriage but not necessarily motherhood (Wilson, 1987). A high concentration of single-headed households thus prevails, a condition that fosters social disorganization and crime (Sampson & Groves, 1989; Wilson, 1987).

After the coerced mobility of prison, the offenders tend to return to their neighborhoods more of a liability than when they left. Not only do they face limited opportunities to secure legitimate work, but also they import from prison cultural values and networks supportive of crime; these challenge the ability of a community to socialize its youth into a common, prosocial value system. Because it is so common among young males in the area, being sent to prison might, in fact, lose its stigma. The legitimacy of the government, especially the criminal justice system, is thus called into question. Again, these countervailing forces, all nourished by mass imprisonment, serve to weaken convention institutions.

Rose and Clear thus offer a potentially important advance of labeling theory, exploring how formal control can produce crime by undermining informal control. In their words:

We argue that state social controls, which typically are directed at individual behavior, have important secondary effects on family and neighborhood structures. These, in turn, impede the neighborhood’s capacity for social control. Thus, at the ecological level, the side effects of policies intended to fight crime by controlling individual criminals may exacerbate problems that lead to crime in the first place. (Rose & Clear, 1998, p. 441)

Thus far, empirical research on their theory of coerced mobility is in short supply and has yielded supportive but inconsistent results (Clear, Rose, Waring, & Scully, 2003; Frost & Clear, 2013; Lynch & Sabol, 2004). The most formidable challenge to the theory is research showing that, due mostly to the effects of incapacitation, incarceration is inversely related to crime rates (Lynch & Sabol, 2004; Pratt & Cullen, 2005; Spelman, 2000). These findings, however, may be misleading. They do not show, for example, whether greater crime savings might be achieved if money devoted to mass imprisonment were allocated to criminal justice sanctions that were community-based and strategically oriented to building human capital in offenders. Further, although imprisonment might achieve contemporaneous or short-term reductions in crime rates, this does not mean that its overuse might not still be a factor in worsening levels of social disorganization and contributing to the emergence of the next generation of offenders—youngsters who will eventually follow their fathers and brothers into prison.

Policy Implications: Restorative Justice and Prisoner Reentry

Consistent with labeling theory, the four contemporary perspectives reviewed above call attention to the way in which the quality of the societal reaction to offenders—including their arrest, sanctioning (especially imprisonment), and stigmatizing social exclusion—may have the unanticipated consequence of deepening people’s criminality. From the viewpoint of Braithwaite, Sherman, and Rose and Clear, the challenge is to find ways to blunt the negative, criminogenic effects of the sanctions typically imposed on offenders. Two recent policy developments are informed by this line of theorizing: restorative justice and prison reentry programs.

Restorative Justice.

Perhaps the most significant recent development in criminal justice in the United States and other nations is “restorative justice” (Bazemore & Walgrave, 1999; Braithwaite, 1998, 1999, 2002; Hahn, 1998; Harris, 1998; Sullivan & Tifft, 2006; Van Ness & Strong, 1997). In traditional criminal justice, the state acts—presumably on the victim’s behalf—to sanction offenders. The intent of the sanction often is to exact a measure of “just deserts” for the victim and larger community by inflicting some sort of discomfort on the offender. Restorative justice, however, rejects the logic that equates the state’s harming of an offender with victims’ receiving any meaningful sense of justice. In fact, the risk is that the state’s action will only increase the overall amount of harm being inflicted without achieving anything of value.

As an alternative, advocates of restorative justice suggest that the guiding principle of the criminal sanction should be to decrease harm by restoring (1) the victim to his or her prior unharmed status and (2) the offender to the community. Instead of a traditional trial in which the state is an adversary prosecuting defendants, such advocates favor a victim–offender conference in which the state functions more as a mediator. In such a conference, which often is attended by family members and interested members of the community, the actions of the offender are condemned or shamed, and the offender is encouraged to take responsibility, express remorse, and apologize to the victim. Offender accountability is integral to the proceedings. Thus, efforts are made to design plans for how the offender will compensate the victim, thereby restoring the victim by undoing the harm that was experienced (e.g., restitution). Community service also might be required. In exchange, the goal is to reintegrate the offender into the community, providing the supports that are necessary to accomplish this end. Throughout this process, the offender is treated fairly and is respected; the offender’s actions, but not him or her personally, are shamed; and the offender is brought into a context where it is possible to be restored to society without facing the continuing stigma of being an “ex-con.”

The restorative justice movement has gained strength from a number of sources, ranging from evangelical Christians and victim rights advocates to peacemaking and feminist criminologists (Immarigeon & Daly, 1997). Still, Braithwaite’s (1998, 1999, 2002) shaming theory has furnished a significant intellectual justification for restorative justice. In Braithwaite’s terms, restorative justice is built on the premise of “reintegrative” shaming rather than “stigmatizing” shaming. His perspective is critical of state-centered punishment because its quality typically is disintegrative and crime inducing. By contrast, Braithwaite’s reintegrative approach seeks to shame the crime but not the criminal and to find ways of reattaching the offender to conventional society. In a similar way, Sherman’s defiance theory would be receptive to restorative justice. Because offenders are treated with respect and fairness, his model would predict that restorative justice would be far less likely than traditional criminal justice sanctions to foster defiance and increased criminality.

It remains to be seen, however, whether restorative justice is an approach capable not only of increasing justice but also of reducing offenders’ criminal involvement (compare Braithwaite, 2002, with Levrant, Cullen, Fulton, & Wozniak, 1999; for an assessment of the existing research, see Cullen & Jonson, 2017). Because restorative justice programs are mostly directed toward minor offenders, their impact on serious chronic offenders is open to question. Studies assessing these interventions, especially randomized experimental program evaluations, are in short supply. There are some very promising results but also conflicting findings (Braithwaite, 2002; Kurki, 2000; McGarrell & Hipple, 2007; Schiff, 1999; Shapland et al., 2008; Sherman & Strang, 2007; Strang & Sherman, 2006). Furthermore, when positive findings are forthcoming, it is often difficult to determine whether reductions in recidivism are due to the restorative features of the program or to other services, such as counseling, that were provided to offenders (Bonta, Wallace-Capretta, & Rooney, 1998).

One of the most systematic assessments of the effectiveness of restorative justice programs has been provided by Bonta, Jesseman, Rugge, and Cormier (2006; see also Gendreau & Goggin, 2000; Latimer, Dowden, & Muise, 2005; Lipsey, 2009). They conducted a meta-analysis of 39 studies evaluating the impact on recidivism of restorative justice interventions (hereinafter referred to as RJIs). They reached three conclusions (all quotes to follow are from Bonta et al., 2006, p. 117).

First, the effects of RJIs are “relatively small, but they are significant” and larger in more recent studies (see also Lipsey, 2009). Second, when RJIs are court-ordered, they have no effect on recidivism; those that are conducted in a “non-coercive environment and that attempt to involve victims and community members in a collaborative manner” achieve the largest reductions in reoffending. Consistent with the work of Braithwaite (2002) and Sherman (1993), this finding indicates that a less stigmatizing sanctioning process may be more effective with offenders.

Third, RJIs “appear to be more effective with low-risk offenders” than with “high-risk offenders.” When focused on high-risk offenders—that is, those with a high probability of recidivating—it appears that RJIs may not be sufficient, by themselves, to counteract the strong criminal tendencies of these individuals. For this group, it might be necessary to combine an RJI with rehabilitation programs that target known criminogenic risk factors for change and that have been shown to decrease reoffending among high-risk criminals (Bonta, Wallace-Capretta, Rooney, & McAnoy, 2002; see also Cullen & Gendreau, 2000; Gendreau, Smith, & French, 2006; Levrant et al., 1999). It should be noted, however, that Sherman and Strang (2007) dispute this finding. Their review of studies leads them to conclude that restorative justice “seems to reduce crime more effectively with more rather than less serious crimes” (p. 8, emphasis in original). Future research on the differential effects of RJIs by risk level thus seems in order.

Prisoner Reentry Programs.

In the first half of the 1900s, inmates were allowed to leave an institution on parole only if they had a place to live (usually with their family) and a job awaiting them. As Simon (1993) notes, this system of “industrial parole” broke down due to the confluence of two factors: rising prison populations and the deterioration of the economies in the nation’s inner cities that made the guarantee of a job implausible. In “postindustrial parole,” the goal became more to manage offender reentry—whether that was through a treatment model that emphasized the provision of services or, more recently, through a policing model that emphasized surveillance and the threat of reincarceration.

For several decades, most correctional observers did not give priority to the disquieting reality that offenders reentering society face an array of daunting barriers (Irwin, 2005)—which predictably lead to high recidivism rates. As Petersilia (2003) points out, “More than two-thirds of those released from prison will be rearrested; nearly half will be returned to jail or prison for a new crime or technical violation; and about a quarter will be returned to prison for a new crime conviction in the three years following their release” (p. 153). These figures are not new; they have remained fairly stable since the mid-1960s (Petersilia, 2003). Still, as prison populations jumped sevenfold since the early 1970s, it became increasingly difficult to ignore the sheer number of inmates “coming home” each year. As Travis (2005, p. xx) notes, the “reality of mass incarceration translates into a reality of reentry.” It is estimated that each year in the United States, well over 600,000 offenders leave prison and return to society (see also Jonson & Cullen, 2015; Mears & Cochran, 2015).

As scholars shifted their attention to this issue, they soon detailed a correctional situation that, as labeling and related theories would predict, almost certainly stabilized, rather than “knifed off,” criminal behavior. Mears and Cochran (2015, p. 125) refer to these as “reentry challenges” (see also Turner, 2017). Thus, many offenders leave prison with their criminogenic needs untreated or worsened by their stay behind bars, with tenuous ties to their families, with no place to live, and with no driver’s license or identification. Their job prospects are dismal, given that they have learned few marketable job skills while institutionalized and, as ex-offenders, will have difficulty being hired; if employed, they will earn low wages and work in unpleasant settings (Bushway, Stoll, & Weiman, 2007; Pager, 2007). In the age of the Internet and near-universal access to legal histories online, Jacobs (2015) has referred to this stigma as “the eternal criminal record.” In this context, legal reform efforts have been undertaken to expand the ability of offenders who have not committed serious felonies to expunge their records (Love, Gaines, & Osborne, 2018). Another option is to create “rehabilitation” or “redemption” ceremonies where offenders who have stayed crime free, are leading an upstanding life, and perhaps have contributed community service are publicly proclaimed to be cured or redeemed and have their criminal record wiped clean (Cullen, 2013; Maruna, 2011a, b). A 2017 national survey showed that the public is generally supportive of these initiatives (Thielo, 2017).

They also are stripped of many civil rights, including the right to vote. In the 1990s, federal and state legislatures moved to impose more restrictions on offenders, especially those convicted of drug and violent crimes. Enacting “legislation to cut offenders off from the remnants of the welfare state” (Travis, 2002, p. 23), they barred offenders from welfare assistance and food stamps, living in public housing, receiving loans for higher education, and the right to hold a driver’s license (see Chen, 2012; Irwin, 2005; Manza & Uggen, 2006; Mauer & Chesney-Lind, 2002; Pager, 2003; Pager & Quillian, 2005; Pattillo et al., 2004; Petersilia, 2003; Travis, 2005). Michelle Alexander (2010) has called these collateral consequences of conviction “the New Jim Crow.” During the Jim Crow era in the United States (roughly after Reconstruction, 1876, until 1965), African Americans were excluded from voting in the South and from full participation in American life through an array of poll taxes, legalized segregation, and violent threats. Now, with so many Blacks pulled into the criminal justice system and having criminal convictions, African Americans in particular experience legalized exclusion in voting, government benefits, and employment requiring state licensure. According to Alexander (2010):

One might imagine that a criminal defendant, when brought before the judge—or when meeting with his attorney for the first time—would be told of the consequences of a guilty plea or convictions. . . . Not so. When a defendant pleads guilty to a minor drug offense, nobody will tell him that he may be permanently forfeiting his right to vote as well as his right to serve on a jury—two of the most fundamental rights in any modern democracy. He will also be told little or nothing about the parallel universe he is about to enter, one that promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion. In this hidden world, discrimination is perfectly legal. (p. 139)

Within the last decade or so, there has been a new realization that failing to address prisoner reentry and pursuing a policy of stigmatizing reintegration exacerbate recidivism and pose a threat to public safety (Taxman, Young, Byrne, Holsinger, & Anspach, 2002; Travis, 2005; Western, 2006). During this time, reentry has emerged as a major policy initiative, and programs facilitating inmates’ return to society have flourished nationwide (Crow & Smykla, 2014; Gunnison & Helfgott, 2013; Jonson & Cullen, 2015; Petersilia, 2011; Rhine & Thompson, 2011). Models or principles of how to develop an effective reentry program also are emerging, generally emphasizing the need (1) to start reentry preparation while offenders are in prison, (2) to focus on the challenges and crises that are faced immediately upon release (e.g., food, shelter, job), and (3) to provide treatment services and support to facilitate long-term community reintegration (Jonson & Cullen, 2015; Petersilia, 2003; Taxman et al., 2002; Travis, 2005; Turner, 2017). Still, it remains to be seen if reentry programs will be well designed and be capable of reducing recidivism—of meeting what Jonson and Cullen (2015, p. 537) call “the challenge of effectiveness.” Some promising results have been found, but reducing recidivism seems contingent on the use of high-quality programs that conform to what is known about effective correctional intervention (Jonson & Cullen, 2015; Listwan, Cullen, & Latessa, 2006; Ndrecka, 2014; Petersilia, 2011). Regardless, prisoner reentry has emerged from the shadows and promises to be an important correctional policy issue for the foreseeable future.

CONCLUSION

Labeling theory’s distinctive focus on societal reaction succeeded in sensitizing criminologists to the important insights that the criminal nature of behavior is socially constructed by the response to it and that a variety of factors can shape who comes to bear a criminal label. The perspective also forced consideration of the possibility that state intervention can have the ironic, unanticipated consequence of causing the very conduct—lawlessness—that it is meant to suppress. In light of conflicting findings, empirical research has yet to definitively confirm this causal thesis. But recent research is increasingly showing that state intervention, especially the use of imprisonment, contributes to entrenching certain kinds of offenders in criminal careers. At the least, labeling theory provides an important reminder that the effects of criminal justice sanctions are complex and may contradict what common sense would dictate. As contemporary criminologists in this tradition remind us, the quality of the sanction that is imposed—what we do to and with offenders—is potentially consequential. This warning assumes significance when we consider policy makers’ repeated assurances that the panacea for the crime problem can be found in widening the reach of the criminal law and in the enormous expansion of prison populations.

FURTHER READINGS

Source: F. T. Cullen, & P. Wilcox. (Eds.). (2010). Encyclopedia of Criminological Theory. Thousand Oaks, CA: Sage. Readings are available online at www.study.sagepub.com/lilly7e.

Braithwaite, John: Reintegrative Shaming Theory

Chambliss, William J.: The Saints and the Roughnecks

Lemert, Edwin M.: Primary and Secondary Deviance

Sherman, Lawrence W.: Defiance Theory

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