In recent decades, decriminalization has gained renewed salience on the criminal justice reform agenda. This article considers the promises and pitfalls of the strategic reliance on decriminalization as a vehicle for scaling back the carceral state. Building on empirical and theoretical insights drawn from various policy domains and national contexts, this analysis sheds light on the double-edged consequences of different variants of de jure and de facto decriminalization, including legislative, judicial, and prosecutorial mechanisms of removing the criminal label from certain forms of behavior. Decriminalization reforms provide opportunities to experiment with alternatives to incarceration and demonstrate their benefits to previously skeptical audiences. However, in many cases, they widen the social control net, shore up the legitimacy of the carceral state, and perpetuate the very institutional problems they aim to address.

Drawing on key insights from relational sociology, criminologists have often analysed the carceral state by examining its relations with welfarist mechanisms of governing social marginality. This way of setting the relational scope for analysing the carceral state, however, has left important research avenues underexplored. Building from Du Boisian sociology and racial capitalism literature, we develop a relational approach that examines the co-productive institutionalisation of liberal and illiberal forms of governance, which we theorize through the original concept of the governance line. This framework sheds new light on how the carceral state has taken shape through processes of boundary work with regulatory forms of governance operating beyond contexts of social marginality. We apply this approach to explore the role of racially stratified notions of freedom in drawing the boundaries between carceral and regulatory regimes of governing drug markets in the United States during the Progressive Era.

Racial disparities in criminal justice are often viewed through a nation-centric lens. The rise of transnational and decolonial approaches in comparative law scholarship provides an opportunity to go beyond this methodologically nationalist perspective and gain a deeper understanding of how processes of criminalization and racialization mutually constitute one another within political spaces that transcend the boundaries of individual jurisdictions. Building on transnational and decolonial premises, this Article develops a theoretical framework for studying how the diffusion of criminal prohibitions interacts with global circulations of racialized discourses and governance practices. This framework traces how racialized bodies of knowledge produced across disciplinary fields become embedded in the normative structures underpinning the enactment of international obligations of criminalization and domestic criminal prohibitions. It considers how such patterns of norm diffusion bear the imprints of colonial encounters and postcolonial entanglements. It also examines how domestic acts of implementing global scripts of criminalization interact with domestic racial formations. The Article uses the developed framework to analyze a case study of the diffusion of cannabis prohibitions across colonial and national jurisdictions during the late nineteenth and early twentieth centuries. It argues that efforts to promote universal acceptance of international legal norms favoring the criminalization of cannabis use reflected wider historical shifts in how racial knowledge was produced and disseminated during the heyday of scientific racism and eugenics. It considers how the embedding of racist assumptions within criminological and psychiatric bodies of knowledge shaped cannabis policy debates in the League of Nations and in domestic contexts, including the United States. This analysis challenges the conventional narrative that casts the United States as a pioneer of prohibitionist drug policies. It reinterprets the origins of cannabis prohibitions in the United States as part of a transnational discourse straddling the Global North–Global South divide.

The studies in this book examine the processes through which transnational criminal justice norms are being formed and institutionalized, migrate across jurisdictions, and shape the practices and attitudes of national and local actors. They assess the driving forces behind the emergence of new mechanisms of transnational legal ordering in diverse areas of criminal justice, analyze their limits and their effects, and evaluate their implications for our understanding of the nature of criminal law as a social and political institution. This introductory chapter sets the analytic framework for these inquiries. Drawing on the book’s case studies, we explore a number of theses for explaining why illicit activities and law enforcement practices become objects of transnational regulation. We consider how competition among and resistance within transnational legal orders shape and constrain their formation, institutionalization, and consequences. Finally, we highlight the book’s contribution to the broader project of developing a socio-legal theory of transnational legal ordering and to scholarly debates regarding the impact of globalization on criminal justice policies.

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Recent scholarship has emphasized the need to develop a polymorphic conceptualization of the regulatory state. This article contributes to this theory-building project by outlining a research agenda for exploring the symbiotic interactions and tensions between the regulatory and carceral morphs of the state. Using the case study of cannabis legalization reforms in the United States, we argue that the legitimation deficits of the carceral state stimulate the proliferation of new regulatory frameworks for governing social problems that were traditionally handled by the criminal justice system. We demonstrate how the polymorphic approach illuminates the ways in which the regulatory and carceral morphs of the state compete for influence over shared policy domains, but also complement and reinforce one another. Thus, rather than precipitating the demise of the carceral state, cannabis legalization reforms sustain a bifurcated governance structure perpetuating long-standing patterns of using drug law as a means for racialized social control.

The design of empirical research and theory-building projects in the sociolegal literature on criminalization is often premised on a presumed dichotomy between domestic and international planes of criminal lawmaking. However, in a global era in which domestic processes of criminalization are increasingly shaped by norms, institutions, and actors developed and operating outside national borders, criminalization research should develop a new theoretical frame for studying how international and domestic practices of criminal lawmaking interact with one another. This article builds from the theory of transnational legal orders and the recursivity of law to propose a transnational processual theoretical framework for the study of criminalization. This framework provides tools for investigating how criminal prohibitions are constituted through recursive interactions between actors operating in international, national, and local sites of legal practice. It draws on empirical studies to show how the processes of constructing, applying, and contesting definitions of international and transnational crimes are embedded in broader structures of power. The article demonstrates how a processual theory of transnational criminalization sheds light on important sociolegal questions about the driving forces and consequences of current efforts to harmonize the definitions of criminal activities across national jurisdictions.

In an era that is often characterized as one of a growing convergence of the laws governing criminal activities in different countries, the issue-area of cannabis policy undergoes processes of fragmentation and polarization. Some countries continue to criminalize all forms of medical and recreational uses of cannabis. Others have sought to "separate the market" for cannabis from that of other drugs by decriminalizing the possession of small amounts of marijuana, authorizing its use for medical purposes, and establishing administrative measures for taxing and regulating the commercial sale of the drug. This chapter explores the causes and consequences of the decline of the transnational legal order of cannabis prohibition. It shows how the erosion of the regulatory capacities of this transnational legal order reflects deep-seated political conflicts over the legitimacy of prohibition norms in this field. It analyzes the ways in which conflicting regulatory approaches become institutionalized as a consequence of the structural mismatch between the actors framing the meaning of cannabis prohibition norms at the international level and the actors implementing these norms in national and local contexts. Finally, the chapter shows how this transnational legal order has created path-dependent trajectories of legal change that continue to shape domestic drug policies in various countries.

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Hendrik Hartog's article "The Constitution of Aspiration" paved new ways of thinking about the historical formation and political significance of rights-consciousness. This Essay considers the contribution of social histories of rights-consciousness to our understanding of the underpinnings and consequences of constitutional change. In particular, we consider the impact of this literature on debates regarding questions of periodization in American constitutional history and on debates concerning the relationship between egalitarian and counter-egalitarian strands of rights-consciousness. We critically evaluate the importance and limits of these contributions by focusing on methodological and interpretive questions that emerge from recent literature on struggles for racial and gender equality.

Nicola Lacey’s book In Search of Criminal Responsibility provides an illuminating vantage point from which to consider the place of the idea of progress in the historiography of criminal law. This essay examines the book’s contribution to the problematization of a cluster of interpretive, epistemological and normative underpinnings of historical claims regarding the progressive implications of the development of distinctively modern forms of attributing criminal responsibility. It shows how the genealogical approach that informs Lacey’s analysis exposes the perspectivity of dominant philosophical conceptualizations of criminal responsibility and places new normative questions on the agenda of criminal law theory.