Does Law Matter? An Old Bail Law Confronts the New Penology

cover_punishsocietyKazemian, Lila, Candace McCoy and Meghan Sacks (2013). Does law matter? An old bail law confronts the New Penology. Punishment & Society, 15(1): 43-70.

The New Penology paradigm stipulates that governments increasingly incarcerate ‘unruly classes’ in order to manage rather than punish these groups. Even more than in previous decades, post-industrial society is said to utilize the criminal sanction as a means of repressing the poor, urban, unemployed, and members of minority groups. Drawing on the New Penology framework, the current research uses the example of bail to assess whether risk management rationales have migrated into judges’ decision making despite a law that favors non-incarceration. Using a sample of 975 felony cases, this study investigates factors that impact bail decisions and outcomes in New Jersey, a state that does not permit preventive detention and in which the Constitution favors release on bail. Our findings suggest that the New Penology is generally not prevalent in New Jersey bail practice. Specifically, results suggest that judges do not seek to preventively detain the ‘urban underclass’ and that criminal history (traditionally used as a proxy for dangerousness) does not consistently emerge as a predictor of bail decisions. Race remains one of the strongest predictors of bail decisions, which is consistent with but certainly not limited to principles of the New Penology. These results call into question the inevitability of postmodern development and raise the issue of whether law can delay it.