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Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionality Seriously and Implementing Fair Fixed Penalties

74 Pages Posted: 27 Oct 2015 Last revised: 21 Mar 2016

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Sandeep Gopalan

Deakin University, Geelong, Australia - Deakin Law School

Date Written: 2015

Abstract

Unabated tough-on-crime policies in the United States for the past two decades in response to a crime problem have now produced another crisis: too many prisoners. Prison gates are currently literally being opened to release prisoners in a bid to ameliorate the unsustainable cost of detaining more than two million Americans. More than 40,000 drug offenders may be released early from prison pursuant to retrospective sentence reductions which have been implemented for no greater reason than the prison walls are crumbling from overuse. Sentencing is the sharp end of the criminal law. It is the domain where the State acts in its most coercive manner against citizens. The cardinal interests at stake are too important for it to continue to be dictated by reflexive legislative hunches. Yet, it is the area of law where there is the biggest gap between what is implemented and what theory informs us is achievable. This Article attempts to correct that failing and in the process makes concrete proposals to prevent the United States making another macro-political and social error by over-reacting to the present crisis. Mandatory harsh penalties have caused the incarceration crisis. The solution to the problem involves maintaining the overarching architecture of this approach but fundamentally alerting its content. The core problem with the current approach to sentencing in United States is not its prescriptive nature. It is that the sanctions are generally too severe; devoid of any attempt to match the gravity of the crime to the harshness of the penalty. Proportionality is the missing component in United States sentencing. Drug traffickers, for example, deserve punishment, but any system that treats them as severely as murderers is afflicted with a fundamental doctrinal deformity. This Article proposes a model to remedy such flaws. It gives meaning and content to proportionality. As a result, it is suggested that most non-violent and non-sexual offenses should be dealt with less harshly. This is especially because the cost and burden of imprisonment to the community needs to be factored into the sentencing calculus. Moreover, prison should be principally reserved for offenders who are a threat to public safety; not those whom we simply dislike. This will result in a rapid emptying of many prisons, but it will be principled - not reflexive. To illustrate the manner in which our recommendations should operate we develop a sentencing grid which, if implemented, would make United States sentencing fair, efficient and profoundly less expensive to the taxpayer.

Suggested Citation

Bagaric, Mirko and Gopalan, Sandeep, Saving the United States from Lurching to Another Sentencing Crisis: Taking Proportionality Seriously and Implementing Fair Fixed Penalties (2015). St. Louis University Law Journal, Forthcoming; Deakin Law School Research Paper No. 15-03. Available at SSRN: https://ssrn.com/abstract=2680474

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Sandeep Gopalan

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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