Mass incarceration, legal change, and locale

Since the turn of the 21st century, a proliferation of empirical and theoretical scholarship has developed regarding mass incarceration in the United States. This work has grappled with its causes, contours, and consequences and has led to numerous important insights about how we arrived at our current state of overincarceration and about its human and economic impact. Yet, as I hope to tease out in this article, several aspects of the processes that gave rise to mass incarceration are theoretically and empirically underdeveloped in the existing literature. The American case, I will suggest, is neither as homogeneous nor as straightforward as might be implied by much criminological research.1 This observation is of central importance to strategizing about policy reform because it means that remediation efforts will need to be multiple, varied, and smaller in scope than what might be assumed from the existing body of work. I have three major (and interconnected) goals here in examining the American mass incarceration story. First, I explicitly make the case that, to understand American penal change, we must make analyses of legal change central to the endeavor. In doing this, I map the four different forms of legal change that have been catalysts to the rise of mass incarceration.2 The first of these forms is the most obvious and the one best attended to in the criminological literature—legislative and other statutory changes to penal codes that