Murder, Meth, Mammon, and Moral Values: The Political Landscape of American Sentencing Reform

Abstract:     
This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.

The Article posits that the experiment in mass incarceration has been driven by six factors: (1) fear of crime and social disorder; (2) disillusionment with the rehabilitative model of sentencing that dominated American criminal courts for decades prior to the 1970s; (3) the apparent successes of the new get-tough approach; (4) timidity, an excessive fear or unwillingness to bear up against even the ordinary and avoidable risks of life and human society; (5) the dehumanization of those who commit crime; and (6) money, the Mammon of the title. It reviews evidence suggesting that high rates of incarceration have played an important role in reducing violent and property crime (though incarceration appears markedly less effective against drug crime). However, the Article suggests that the human and economic costs of mass incarceration are so high that the policy has probably exceeded the point of diminishing returns.

The Article then surveys the political landscape and suggests that a broad, and in some respects unlikely, coalition favoring ameliorating sentencing reforms may be forming. This coalition includes the institutional bar; many judges; liberal social action advocacy groups; leaders of minority communities, particularly African-Americans and Hispanics disproportionately impacted by tough sentencing laws; virtually the entire legal academic community; conservatives who take federalism seriously and oppose the increasing federalization of previously local crime; fiscal conservatives, particularly those in statehouses who have to balance budgets; libertarians who oppose the "war on drugs" and other extensions of criminal liability to arguably private behavior; and members of the business community alarmed at expanding liability and skyrocketing penalties for white collar crime.

The Article concludes by suggesting that a critical missing component of a coalition favoring intelligent sentencing reform is the politically active evangelical Christian right, and that there are good reasons to think that evangelicals can be enlisted the effort to achieve such reform.

Number of Pages in PDF File: 20

Keywords: crime, criminal law, sentencing, punishment, prison, mass incarceration, incarceration, prison policy, religion, federal sentencing guidelines, sentencing guidelines, white collar crime, economic crime, sentencing commission

JEL Classification: H50, K10, H72, K14, K42

Accepted Paper Series