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«This PDF is available from The National Academies Press at The Growth of Incarceration in the United ...»

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in which the judge would convict the defendant of a misdemeanor rather than the charged felony or, with the prosecutor’s acquiescence, acquit the defendant on the firearms charge. Another avoidance technique was to decrease by 2 years the sentence that otherwise would have been imposed and then add back the mandatory 2-year increment (Heumann and Loftin, 1979; Loftin et al., 1983).

Oregon’s Measure 11, adopted by referendum in 1994, required the imposition of mandatory minimum prison sentences ranging from 70 to 300 months for anyone convicted of 16 designated crimes (and eventually 5 more). RAND Corporation evaluators hypothesized that judges and lawyers would alter previous ways of doing business, especially in filing charges and negotiating plea bargains, to achieve results they deemed sensible and just. The evaluators expected that relatively fewer people would be convicted of Measure 11 offenses and more of non-Measure 11 offenses and that those convicted of Measure 11 offenses would receive harsher sentences. Their research confirmed these hypotheses. Sizable changes were observed in charging decisions (fewer Measure 11 crimes, more lesser crimes) and plea bargaining (fewer pleas to initially charged offenses, more pleas to lesser included offenses) (Merritt et al., 2006).

New Jersey’s truth-in-sentencing law required those affected to serve 85 percent of their announced sentence. This was not a mandatory minimum sentence law, but similar hypotheses apply: that charging and bargaining patterns would change to shelter some defendants and that sentences would be harsher for those not sheltered. Both hypotheses were confirmed (McCoy and McManimon, 2004).

Truth-in-sentencing and mandatory minimum sentence (including three strikes) laws are difficult to reconcile with any mainstream, or even coherent, theory of punishment, as the discussion in the next section shows.

Many of the laws require sentences that are highly disproportionate to sentences received by prisoners convicted of other offenses and, as we show in Chapter 5, cannot be justified on the basis of their crime prevention effects.

We now step back from this period of policy turbulence and shifting objectives to assess the changes detailed in this section against three yardsticks—the principles of justice that underlie ideas about punishment in Western thought, the role of scientific evidence in the adoption of sentencing policies, and the unprecedented racial disparities that have resulted from the past four decades of policy changes.

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Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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punishment not to promote any particular view or set of views, but to make four points.

The first is that normative principles of justice are relevant to deciding whether a sentencing policy or a decision in an individual case is justifiable and appropriate. Criminal punishment is the paradigm instance of conflict between the interests of the state and those of the individual; criminal convictions can result in losses of property, liberty, and life. Few people want such decisions to be made casually, arbitrarily, or capriciously. That this is so can be seen by recognizing how any individual, law-abiding or not, would want criminal charges against himself or herself handled— evenhandedly, fairly, and justly. Principles of justice are inherently germane to thinking about punishments meted out for crime. The second and third points concern core ideas that recur in coherent sets of views about just punishments—that punishments should ordinarily be proportionate to the severity of crimes and that they should not be more severe, or cost more to administer, than makes sense in relation to the goals they are intended to achieve. These ideas are often (as in the guiding principles articulated in Chapter 1) referred to as the principles of “proportionality” and “parsimony.”11 The fourth point is that proportionality and parsimony have long been widely recognized as important considerations in punishment in all Western countries, including the United States.

Considerations of proportionality and parsimony have fallen into neglect in the United States. Many laws enacted in the 1980s and 1990s required less serious crimes to be punished more severely than more serious ones. Examples include mandatory minimum sentence laws requiring longer terms for people convicted of small sales of drugs than terms typically imposed for many violent offenses, and the sentencing of people to 25-year minimum terms for property misdemeanors under California’s three strikes law. Such laws violate the fundamental principle that punishments should be proportionate to the seriousness of crimes. Other laws mandating prison sentences vastly longer than can be justified by their crime prevention effects violate the principle of parsimony.

Proportionality has been a requirement of every mainstream normative theory of punishment since the Enlightenment. Retributivists, who believe that those who commit offenses deserve to be punished for moral reasons, also believe that punishments must be proportional to the seriousness of crimes. If, for example, shoplifting were punished more severely than robbery or rape, the law on its face would send the perverse moral message that 11 In earlier times, as in the Model Sentencing Act of the Advisory Council of Judges of the National Council on Crime and Delinquency (1972), parsimony often was referred to as “the least restrictive alternative” principle: if several possible punishments would achieve their goals equally well, the least restrictive or costly one should be used.





Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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shoplifting is the most serious of the three offenses. Punishing a street-level seller of a few grams of an illicit substance more harshly then someone who commits a violent offense likewise implies that an act of violence is less serious or important than a small sale of drugs.

As an idea and as a term of art, proportionality is commonly associated with retributivist views.12 Proportionality, however, is not just a retributive value. Some form of proportionality is a major component of all mainstream theories of punishment. Consequentialists, who believe that punishments can be justified by their crime prevention or other good effects, also endorse a conception of proportionality (Frase, 2009).13 They typically believe that punishment can be justified if the suffering imposed on a convicted individual prevents greater suffering by others. Thus for consequentialists, punishments should be proportional to the good effects they will produce. Punishments more severe than is necessary to achieve those effects waste public resources and impose suffering for no good purpose.

Some people, probably most, subscribe to mixed theories in which punishments can be justified by their crime prevention effects, but only if they do not exceed what would be warranted by the seriousness of the crime. That is, retributive ideas about deserved punishment set upper limits on what can justly be done to a particular individual, but anticipated crime prevention effects may be appropriate considerations in deciding what to do within those limits (e.g., Morris, 1974; Tonry, 1994).14 Restorative justice theories typically take the same position, although based on different reasoning. John Braithwaite, the most influential restorative justice theorist, offers a negative retributivist account. Proportionality per se, he argues, is not important. The important objectives are to treat offenders and victims with respect and concern and to try to repair broken or damaged relations among the victim, the offender, and the community.

If restorative processes culminate in unanimous agreement among participants on substantially different consequences for offenders in comparable 12 Modern retributivist theorizing dates from the nineteenth-century writings of Kant (1965) and Hegel (1991). Modern theories differ in details but agree on the core propositions that offenders deserve to be punished for moral reasons and that punishments should be proportionate to the degree of wrongdoing. Ashworth and colleagues (2009, Chapter 4) and Tonry (2011b, Part II) survey contemporary theories and theorists.

13 Modern consequentialist theorizing dates from the eighteenth- and nineteenth-century writings of Beccaria (2007) and Bentham (1970, 2008). Modern theories differ in details but agree on the core propositions that punishments must be justified by their beneficial effects and should not be more severe than is required to achieve those effects. Ashworth and colleagues (2009) and Tonry (2011b) survey contemporary theories and theorists.

14 Philosophers refer to this as “negative” retributivism (proportionality concerns set maximum but not minimum limits on punishment), in contrast to “positive” retributivism, in which proportionality concerns define the appropriate deserved punishment and thus set both maximums and minimums (Duff, 2001).

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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cases, then so be it. At the same time, Braithwaite argues, there is a human rights limit—the upper bound of proportionate sentences the justice system might impose (Braithewaite and Pettit, 1990; Braithwaite, 2001).

The ideas just summarized are consistently represented in the philosophical literature as fundamental principles of punishment, but they also reflect widely held beliefs among the general public. There are good reasons to believe that most Americans share the notions that punishments should generally be proportionate to the seriousness of crimes in the retributive sense and not be wasteful or excessive in the consequentialist sense (Roberts and Stalans, 1997). A sizable body of public opinion research, for example, shows that lay people believe punishments should be proportionate to the seriousness of crimes (e.g., Robinson, 2008, 2013), and there is widespread agreement within the United States and other countries about the relative seriousness of different crimes (e.g., Roberts et al., 2003; Darley and Pittman, 2003; Aharoni and Friedland, 2012).

The principles of justice outlined here provide a useful lens through which to evaluate sentencing changes over the past 40 years. Many sentences mandated and imposed under current laws are neither proportionate nor justifiable in terms of their preventive effects. Many street-level drug traffickers, for example, are mandated to receive minimum prison terms of 5, 10, 20, or more years—more severe than punishments received by many people convicted of robbery, rape, or aggravated assault. These laws violate retributive ideas about proportionality given that the general public typically views robberies, rapes, and aggravated assaults as more serious than most drug sales and deserving of greater punishment (Robinson, 2008).

Nor can such laws be justified in consequentialist terms. Most drug policy analysts agree that, as discussed further below, imprisoning individual drug dealers seldom reduces the availability of drugs or the number of traffickers (Caulkins and Reuter, 2010; Kleiman et al., 2011).

Some three strikes laws—for example, California’s—mandate lengthier sentences for some property and drug offenses than are required for violent offenses. These laws violate retributive ideas about proportionality; few people believe property and drug crimes, even when repeated, are more serious than violence. These laws also fail consequentialist tests. If the goal is deterrence, then it makes little sense to threaten harsher penalties for theft or a small-scale drug sale than for rape; to do so implies that rape is a less serious offense. If the goal is incapacitation, then it makes little sense to protect the community by confining those convicted of drug or property offenses longer than those convicted of violent ones. If the goal is rehabilitation, then it makes little sense to use longer prison terms and incur greater expense to treat those convicted of property offenses compared with those convicted of violent offenses. If the goal is reinforcing norms, clarifying values, or reassuring the public, then it makes little sense to undermine norms Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

–  –  –

and obfuscate values by suggesting that theft is more serious than rape, or to imagine that such perverse messages will reassure the public.

We have summarized these principles to provide a normative framework for thinking about the policies that led to high rates of incarceration in the United States. In the committee’s view, many of the nation’s policy decisions that have contributed to high rates of incarceration are inconsistent with the principles of parsimony and proportionality. In Chapter 12, we argue for a reaffirmation of these fundamental and widely supported principles in setting punishment policies in the future.

EVIDENCE AND POLICY

Social science evidence has had strikingly little influence on deliberations about sentencing policy over the past quarter century. Many factors combined to increase sentence lengths in U.S. prisons. They include enactment of mandatory minimum sentence, truth-in-sentencing, three strikes, and life without possibility of parole laws; discretionary decisions by prosecutors to charge and bargain more aggressively and by judges to impose longer sentences; and decisions by parole boards to hold many prisoners longer, deny discretionary release altogether more often, and revoke parole more often. Some of these decisions were premised on beliefs or assumptions about deterrence, incapacitation, or both. From a crime control perspective, those beliefs and assumptions were largely mistaken (see

Chapter 5).



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