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This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County's Men's Central Jail. As a formal matter, this unit—known as K6G—is the same as every other in Men's Central, but for one key difference: its residents are exclusively gay men and transgender women. In reality, however, life in the unit contrasts dramatically with life in the rest of the Jail. Most notably, whereas the Jail's general population (GP) is almost entirely governed by rules created and violently enforced by racially stratified gangs, K6G is wholly free of so-called "gang politics" and the threat of collective violence (a.k.a. riots) that gang rule creates. K6G is also relatively free of sexual assault—no small feat given that the people housed in this unit would otherwise be among the Jail's most vulnerable residents. Although very far from ideal, in these and other ways, life in K6Gis markedly safer and more humane than elsewhere in the Jail.

This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County's Men's Central Jail. This unit, known as K6G, has an inmate culture that contrasts dramatically with that of the Jail's generalpopulation (GP) units. Most notably, whereas life in the Jail's GP is governed by rules created and violently enforced by powerful inmate gangs, K6G is wholly free of gang politics and the threat of violence gang control brings. In addition, unlike residents of GP, who must take care in most instances to perform a hypermasculine identity or risk victimization, residents of K6G face no pressure to "be hard and tough, and [not] show weakness" and thus can just be themselves—a safer and less stressful posture. The K6G unit is also relatively free of sexual assault, no small thing given that K6G exclusively houses gay and transgender prisoners, who would otherwise be among the Jail's most vulnerable residents. This Article draws on original research to provide an in-depth account of life in both K6G and the Jail's GP, with the aim of explaining K6G's distinctive character. The most obvious explanation may seem to lie in the sexual identity of K6G's residents, and this feature does help to account for many positive aspects of the K6G experience. But this Article argues that the primary explanation is far more basic: thanks to a variety of unrelated and almost accidental developments, residents experience K6G as a relatively safe space. They thus feel no need to resort to the self-help of gang membership or hypermasculine posturing and are able to forego the hypervigilance that often defines life in GP. As a consequence, life in K6G is less dehumanizing than life in GP and is even in some key respects affirmatively humanizing, providing space for residents to retain, express, and develop their personal identity and sense of self in a way that is psychologically healthier than the typical carceral experience. Understanding the implications of these differences and how they arose has much to offer those committed to making carceral conditions safer and more humane not only in L.A. County, but in prisons and jails all over the country.

Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate. Appreciating the "cognitive conventions" by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable. Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices—the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-defeating system has been able to sustain itself, and locates the answer in the radically individualist ideology, pervasive in the criminal context, that construes all criminal conduct as exclusively the product of the offender's free will. Part V illustrates the way this individualist discourse constructs criminal offenders as not just unrepentant evildoers but also sub-human—a process referred to as "making monsters"—and examines the work this normative reframing does both to vindicate the penal strategy of exclusion and control and to justify the arguably inhumane treatment of prisoners. Part VI explores the way that perceiving criminal offenders as moral monsters makes it difficult to distinguish the relatively few individuals who are genuinely congenitally violent and dangerous from the vast majority who are not; through this ideological (re)construction,allpeople who persist in committing crimes, even nonviolent offenders, can come to seem appropriate targets for extended and even permanent exclusion. Part VII considers the racial implications of exclusion and control, in particular the way the cultural construction of African Americans as "incorrigible" may explain why members of this group are overrepresented as targets of the American carceral system. Part VIII shifts the focus to the prison itself, where the self-defeating logic of exclusion and control has reappeared behind bars in the form of the supermax prison. Finally, the Conclusion considers how the destructive and self-defeating dynamic of exclusion and control may be disrupted. It argues that a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens, entitled to respect and consideration as such.

Debates over contracting out government functions to private, for-profit entities often play out within a deliberative framework that can be thought of as "comparative efficiency." From this perspective, the decision whether to privatize any given government function turns on which sector, public or private, would perform the relevant function more efficiently. Comparative efficiency thus has two defining features: it views the motivating question as a choice between public and private, and it treats efficiency as the sole value guiding the analysis. That comparative efficiency is the appropriate way to approach the issue of privatization tends to be taken for granted. Its value neutrality is also assumed. In this essay, I challenge these assumptions. Using the example of private prisons, I argue that comparative efficiency operates instead as a rhetorical device that keeps the debate within particular bounds, excluding some concerns altogether and reframing others in ways consistent with its own priorities. I then consider the interests and values served by the ways comparative efficiency structures the private prisons debate, and argue that it is the project of privatization itself that is the beneficiary.

What are the terms of legitimate punishment in a liberal democracy? Traditional approaches to this question tend to focus on the purposes punishment is supposed to serve (deterrence, retribution, rehabilitation, moral education, etc.) while giving little if any consideration to the coercive deployment of state power punishment represents. In this article, I take the coercive nature of state punishment as my starting point. My aim is to determine what normative constraints, if any, exist on the state's power to punish criminal offenders in a liberal democracy - a determination, I argue, that is especially urgent given the current size of America's prison population. To answer this question, I draw on the work of John Rawls. I do so because I share Rawls' view that, if the exercise of state power in a liberal democracy is to be legitimate, it must be justifiable in terms that all members of society subject to that power would accept as just and fair. Rawls' deliberative model was originally intended for questions of ideal theory, on which all members of society are assumed to act justly towards others. The first task of the paper is thus to render Rawls' model applicable to problems of partial compliance, of which punishment is one. Ultimately I argue that, assuming conditions of partial compliance, deliberating parties would approach the task of selecting principles of punishment by considering the implications of various alternative principles as if they could end up as either crime victim or punished offender once they enter society as citizens. Having established this perspective, and its consistency with the basic liberal ideals of moral equality and individual sovereignty, I then go on to determine the principles of punishment that would be selected by parties deliberating under these conditions and would thus constitute the terms of legitimate punishment in liberal democracy. I identify five such principles, at the heart of which is what I call, following Braithwaite and Pettit, the "parsimony principle." The basic idea of this central principle is that the punishment of convicted offenders must be no more severe than necessary to yield an appreciable deterrent effect on the commission of serious offenses. Finally, I consider how the principles of legitimate punishment might be translated into actual criminal justice policy. Here, I concede that the inevitability of reasonable disagreement, even among legislators deliberating in good faith over what punishments the principles allow, means that in practice we can never be fully confident of the legitimacy of any punishments imposed. As I show, however, the principles of legitimate punishment I identify still provide the basis from which to call into question the legitimacy of a range of criminal justice policies currently in force in the United States, including mandatory minimums, California's "three strikes" law, the under-funding of indigent defense, and the widespread overcrowding and sexual violence in the nation's prisons and jails. In this way, the theoretical analysis I offer provides a basis for challenging the legitimacy of many criminal sentences being served right now in American prisons.

With prison populations increasing rapidly, more and more states are turning to privatization to trim their corrections budgets. Riding the crest of this trend are the private sector prison providers, whose combined business has grown more than fifty percent since 1996 and currently generates revenues of over a billion dollars a year. Industry spokespeople and other advocates claim that prison privatization also benefits the taxpayer by saving states millions of dollars annually in incarceration costs. Civil libertarians, however, fear that placing responsibility for prisoners in private hands may lead to violations of inmates' constitutional rights. In Richardson v. McKnight, the Supreme Court held that private prison guards are not entitled to qualified immunity from liability under 42 U.S.C. § I983. Finding that competitive market forces operate to discourage private prison guards from displaying unwarranted timidity in the performance of their duties, the Court saw no need to extend qualified immunity in this case." It did not, however, address the further question whether qualified immunity applies in the more likely situation in which private parties perform government contracts in the absence of competitive market forces. Lower courts should resist the temptation to conclude from this silence that an extension of qualified immunity is appropriate in such cases. As the private prison example - incorrectly characterized by the Court as a competitive market - illustrates, the profit motive animating private firms may mean that qualified immunity for private parties is inappropriate even, and especially, when competitive market forces do not obtain.

A vital collection for reforming criminal justiceAfter five decades of punitive expansion, the entire U.S. criminal justice system— mass incarceration, the War on Drugs, police practices, the treatment of juveniles and the mentally ill, glaring racial disparity, the death penalty and more — faces challenging questions. What exactly is criminal justice? How much of it is a system of law and how much is a collection of situational social practices? What roles do the Constitution and the Supreme Court play? How do race and gender shape outcomes? How does change happen, and what changes or adaptations should be pursued? The New Criminal Justice Thinking addresses the challenges of this historic moment by asking essential theoretical and practical questions about how the criminal system operates. In this thorough and thoughtful volume, scholars from across the disciplines of legal theory, sociology, criminology, Critical Race Theory, and organizational theory offer crucial insights into how the criminal system works in both theory and practice. By engaging both classic issues and new understandings, this volume offers a comprehensive framework for thinking about the modern justice system. For those interested in criminal law and justice, The New Criminal Justice Thinking offers a profound discussion of the complexities of our deeply flawed criminal justice system, complexities that neither legal theory nor social science can answer alone

"After five decades of punitive expansion, the entire U.S. criminal justice system (mass incarceration, the War on Drugs, police practices, the treatment of juveniles and the mentally ill, glaring racial disparity, the death penalty and more) faces challenging questions. What exactly is criminal justice? How much of it is a system of law and how much is a collection of situational social practices? What roles do the Constitution and the Supreme Court play? How do race and gender shape outcomes? How does change happen, and what changes or adaptations should be pursued? The New Criminal Justice Thinking addresses the challenges of this historic moment by asking essential theoretical and practical questions about how the criminal system operates. In this thorough and thoughtful volume, scholars from across the disciplines of legal theory, sociology, criminology, critical race theory, and organizational theory offer crucial insights into how the criminal system works in both theory and practice. By engaging both classic issues and new understandings, this volume offers a comprehensive framework for thinking about the modern justice system"--Publisher's website.

Frontmatter -- Contents -- Acknowledgments -- Introduction: Reframing the Outsourcing Debates -- I. Recent Developments -- 1. Public-Private Governance: A Historical Introduction -- 2. The Transformation of Government Work: Causes, Consequences, and Distortions -- 3. The Federal Framework for Competing Commercial Work between the Public and Private Sectors -- II. Cases and Critiques -- 4. Rent-a-Regulator: Design and Innovation in Environmental Decision Making -- 5. Outsourcing Power: Privatizing Military Efforts and the Risks to Accountability, Professionalism, and Democracy -- 6. How Privatization Thinks: The Case of Prisons -- III. Responses and Reforms -- 7. Achieving Contracting Goals and Recognizing Public Law Concerns: A Contracting Management Perspective -- 8. Federal Contracting in Context: What Drives It, How to Improve It -- 9. Six Simple Steps to Increase Contractor Accountability -- 10. Privatization and Democracy: Resources in Administrative Law -- 11. Private Delegations, Due Process, and the Duty to Supervise -- 12. Outsourcing and the Duty to Govern -- 13. Public Values/Private Contract -- Notes -- Contributors -- Index