The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London
Rubin, Ashley T., Law & Society Review
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.
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The law rarely behaves as its creators intended, while people and organizations respond to the law in unexpected ways. This can lead to a number of unintended consequences. First, the law has a tendency to diffuse beyond its original target. For example, in the wake of Civil Rights legislation, businesses often went beyond the letter of the law to protect against legal sanctioning (Dobbin 2009). More mundanely, disputants who do not use the courts to settle their dispute rely on the threat of going to court to achieve a better outcome (Mnookin and Kornhauser 1979). Second, while the law has a certain amount of "creep," it also leads to results that may be contrary to the original intention. In some cases, business organizations' compliance with legal regulation is purely symbolic, without the anticipated substantive effects (Edelman 1992). In other cases, business organizations' "internalization of law" frustrates the progressive democratic and rights foci of the law (Edelman and Suchman 1999). Third, the law may be generally disregarded in decision-making processes. Individuals may disregard the law, whether out of poor knowledge or normative preferences, and resolve disputes without relying on the law (Ellickson 1986; see also Macaulay 1963). In other contexts, the effect of the law in shaping organizational practice regulated by law may be eclipsed by other powerful social institutions (Heimer 1999). Perhaps most disturbingly, significant court victories can have a minimal impact in practice on the rights these victories endorsed (e.g., Rosenberg 1988). In a large variety of contexts, then, the law may have larger-thanintended effects, somewhat sinister effects, or simply no effect on the various practices and activities it is thought to regulate.
In the criminal justice context, we see this theme of unintended consequences emerge most clearly following the adoption of new penal policies and innovations. Many penal innovations are the product of well-intentioned reformers who seek to reduce the number of individuals receiving a severe form of punishment by replacing it with a more lenient punishment. Historically, however, instead of replacing this punishment, the new punishment often leads to two unexpected consequences. First, the new punishment "widens the net" of criminal justice in that more people are punished under the new regime: given this more attractive alternative, criminal justice agents use the new punishment against many more individuals than would have previously received the more severe punishment reformers sought to avoid. Included in this number are some individuals who would not have been punished at all under the old regime or those who previously would have been punished less severely, leading to the second consequence. …