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Legitimacy and Criminal JusticeAn International Exploration$
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Justice Tankebe and Alison Liebling

Print publication date: 2013

Print ISBN-13: 9780198701996

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780198701996.001.0001

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An Unenviable Task: How Federal Courts Legitimized Mass Incarceration

An Unenviable Task: How Federal Courts Legitimized Mass Incarceration

(p.227) 11 An Unenviable Task: How Federal Courts Legitimized Mass Incarceration
Legitimacy and Criminal Justice

Jonathan Simon

Oxford University Press

This chapter offers a view of the core beliefs around which the legitimacy of contemporary US prisons in federal courts may be said to be justified. Empowered by the Constitution to decide whether treatment complained of by inmates constitutes ‘cruel and unusual punishment’, and to order an end to conditions that do, federal courts have since the 1960s regularly intervened in state prison operations, ordering new procedures and sometimes whole new facilities (Feeley and Rubin 1998). While this pattern of court driven reforms has much diminished during the period of mass incarceration, the federal courts have been one of the few remaining American political institutions in which the issue of the legitimacy of imprisonment has been regularly raised at all during the long war on crime. Should the courts reawaken on the issue of prisons, their advantages could drive a broader public and political revisiting of mass incarceration.

Keywords:   legitimacy, punitiveness, mass incarceration, prison

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