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Mass Incarceration Was a Huge Mistake—Here's What Needs to Change

In America, all the things that can go wrong with criminal justice have done so.

Photo Credit: © trekandshoot/ Shutterstock.com

The following is an excerpt from the new book Sentencing Fragments by Michael Tonry (Oxford University Press, 2016)

Mass incarceration needs to be unwound and prevented from recurring. This can happen only if fundamental changes are made in sentencing laws, institutions, policies, and practices. At rhetorical levels at least, there appears to be broad agreement that mass incarceration was a huge mistake. It has been much less effective at preventing crime than many people envisioned; it does huge damage to offenders, their families, and their communities; it wastes vast amounts of money. And, not unimportantly, it gives and has long given America bad press throughout the world.

In the 1950s and 1960s, the American criminal justice system was a model for the countries of Europe as they rebuilt their legal systems after World War II and to the leaders of newly independent countries emerging from colonialism in Africa, Asia, and Latin America. American advisors and ideals played major roles in the development of the UN’s Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1950), and aspirational documents around the globe. The same impulses were manifested within the United States in the Model Penal Code (1962), the Model Sentencing Act (1963), and the reports of the national crime commissions of the 1960s and early 1970s.

In recent decades, the United States has served as an object lesson of all the things that can go wrong when criminal justice systems become deeply enmeshed in partisan politics, ideological conflict, and public emotion. They should be reconstructed in ways that make them once again sources of pride, beacons for all the world to admire and emulate.

Institutions and processes need to be rebuilt so that they reflect and live up to fundamental Western ideas about justice and fairness. The moral responsibility, human dignity, interests, and needs of defendants and offenders should be restored to their place at the center of the criminal justice system. People’s freedom, property, reputations, and lives are at stake. Everything the criminal justice system does should acknowledge that. That does not mean, of course, that victims’ interests or state interests in security and crime prevention should be ignored. They are important, but there is no zero-sum game. Treating offenders unjustly does not honor victims, affirm moral values, or make a safer society.

Sentencing systems must be redesigned to allow individualized consideration not only of offenses but also of offenders’ personal characteristics and circumstances. Policy initiatives of the 1980s and 1990s made that impossible. They need to be repealed and replaced with new laws and institutions that allow judges and corrections officials to respond, justly and appropriately, to wrongdoing, as most have always wanted to do.

There are good reasons, including the widespread belief that current policies are cruel, wasteful, and counterproductive, to hope that american criminal justice policies will return to the mainstream of those in Western countries as they were before the 1980s. If that happens, crime will once again be seen as a regrettable but inevitable feature of human life to which the state must respond, in ways that are proportionate and humane, acknowledge wrongdoing, reinforce moral values, and help offenders reestablish good lives for themselves and their loved ones. Responses to crime should once again reflect the Judeo-Christian credo, and I assume those of most faiths, that sins should be hated but sinners loved.

American sentencing and corrections systems too often treat individuals unfairly. They too often result in severe punishments that bear no relation to the seriousness of the crimes for which they are imposed. They too often do unnecessary damage to offenders and their children and their prospects for living satisfying, law-abiding lives. They do not express respect and concern for the people whose lives are at stake.

American sentencing and corrections systems are wasteful and ineffective. Those are reasons to redesign them, but not the most important reasons. A new correctional subindustry flying the flag of “justice reinvestment” promotes laws aimed simultaneously at saving money and reducing recidivism. Both are worthy goals, but the changes made in their name have so far only nibbled at the edges of the problems and left in place the laws and institutions that produced mass incarceration and its unhappy effects. Until they are changed, none of the fundamental wrongs will be righted.

Numerous, but mostly meager, changes have been made. Prosecutors and other practitioners have moderated some practices. The scope of some sentencing laws has been slightly narrowed; standards for parole release eligibility have been slightly broadened; criteria for parole and probation revocation have become less rigid; prisoner reentry programs have been created; treatment programs have been expanded. None of the major tough-on-crime legislation of the 1980s and 1990s, however, has been repealed.

Even the few ballyhooed changes have been modest. The conversion of the federal 100-to-1 crack cocaine sentencing law to a still unjust 18 to 1 is one example. Limited amendments to New York’s Rockefeller Drug Law are another. Former US Attorney General Holder’s announcement that low-level, nonviolent federal prisoners who had already served 10 years in prison and had no significant criminal history would be considered for commutations is a third.

No legislature, however, has repealed a three-strikes, life-without-parole (lWoP), or truth-in-sentencing law or created a broad-based mechanism for assessing the need for continued confinement of people serving long prison terms. Except in Michigan in 2002, no legislature has repealed all or most of its mandatory minimum sentence laws. Until these things happen, nothing substantial will change. Mass incarceration will continue. The United States will remain an outlier among Western nations.

Few politicians are yet willing to acknowledge publicly that many of the laws enacted in 1984–96 were unjust and unwise. The cases to be made for major changes are moral ones, not politically risk-averse claims about minor and first-time offenders, cost-savings, and recidivism reduction. Citizens voted for referenda to legalize marijuana, authorize its medical use, and narrow California’s three-strikes laws because they were right things to do. Judges weakened the federal sentencing guidelines and California’s three-strikes law because the guidelines and the law were unjust. Initiatives to roll back mass incarceration and rebuild american sentencing systems must be justified in those terms.

A just system would be based on these four principles of punitive justice:

• Justice as Fairness: Processes for responding to crimes should be publicly known, implemented in good faith, and applied evenhandedly.

• Justice as Equality: Defendants and offenders should be treated as equals; their interests should be treated with respect and concern when decisions affecting them are made.

• Justice as Proportionality: Offenders should not be punished more severely than can be justified by their blameworthiness or the gravity of their offenses relative to the severity of punishments justly imposed on others for the same and other offenses.

• Justice as Parsimony: Offenders should not be punished more severely than can be justified by valid, normatively based purposes for which they are being punished.

Those are not airy-fairy propositions. They describe what any person would want for themselves or their loved ones if accused or convicted of crime. They are minimal requirements of justice. 

 

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