The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London

Abstract

What were the consequences of penal transportation to the New World for eighteenth‐century British criminal justice? Transportation has been described by scholars as either a replacement of the death penalty responsible for its decline, or a penal innovation responsible for punishing a multitude of people more severely than they would have been punished before. Using data from the Old Bailey Sessions Papers and the Parliamentary Papers, this study examines sentencing and execution trends in eighteenth‐century London. It takes advantage of the natural experiment provided by the passage of the 1718 Transportation Act that made transportation available as a penal sentence, thus enabling one to assess the “effect” of transportation on penal trends. This study finds that the primary consequence of the adoption of transportation was to make the criminal justice net more dense by subjecting people to a more intense punishment. While it was also associated with a small decline in capital sentences for some types of offenders, the adoption of transportation was also associated with an increase in the rate at which condemned inmates were executed. The study closes with a discussion of the conditions that may lead to law's unintended consequences, including the mesh‐thinning consequences observed here.

Penal change as penal layering: A case study of proto-prison adoption and capital punishment reduction, 1785–1822

“…As Cohen (1979Cohen ( , 1985 has described, alternative sanctions often become supplements to existing policies by either punishing marginal cases (that previously would have gone unpunished) with the newer, lighter sanction while continuing to use the heavier sanction without modification (netwidening), or using the newer sanction in place of a lighter sanction (mesh thinning). Cohen's metaphor, however, has been more popular with evaluation studies than studies of penal change (but see Rubin, 2012). Layering represents a twist on Cohen's metaphor: while netwidening and mesh thinning may result from new layers of punishment, they describe how the new punishment behaves in practice.…”

From the Constitution to the Classroom: Educational Freedom in Antwerp’s Ultra-Orthodox Jewish Schools

“…These agents are "legal subject," according to Fournier (2012), who shape and produce law as much as Parliament does, through their constructive creativity and normative interpersonal interactions (p. 189). Therefore, the substance of the education laws does not necessarily determine the details of its implementation (see Barnes & Burke, 2012;Garth & Sarat, 1998;Griffith, 1979;Rubin, 2012). Studies of education law should look into the interactions of the laws with social norms and with diverse agents encountered in the implementation process.…”

“…According to such a dialectical relational approach, an analysis of education law should take into account its interactions with the other cogwheels of education policy, which are driven by various "legal subjects" (Fournier, 2012, p. 189). An in-depth inquiry into the plural field in which the education laws operate, and into the conditions under which these laws are both formed and appropriated, may contribute to the understanding of their unintended impacts (see Levinson et al, 2009;Rubin, 2012). It may also identify the political powers that generate these impacts (Barzilai, 2008) and the precise mechanisms through which they occur (see Kim, Boyle, Longhofer, & Downloaded by [Northeastern University] at 01:53 19 November 2014Brehm, 2013.…”

Punishment: Social and Legal Aspects

“…Historians have treated this as a considerable expansion of state power over the poor and working classes. Using the metaphor of a net, these new penal forms are said to have widened the extent of the net (extending social control to more citizens) and thinning its mesh (closing the gaps through which lower-level offenders previously escaped sanction; see Platt, 1972;Rothman, 1980;Cohen, 1985;Rubin, 2012).…”