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A Principled Strategy for Addressing the Incarceration Crisis: Redefining Excessive Imprisonment as a Human Rights Abuse

49 Pages Posted: 2 May 2016 Last revised: 9 Sep 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

Marissa Florio

Harvard University, Law School, Students

Date Written: 2016

Abstract

In July 2015, Barack Obama become the first sitting United States President to visit a United States prison. The visit was largely symbolic. What is not symbolic is the reason for the visit. Sentencing policy and practice in the United States is fundamentally broken, to the point that it is an intellectual and normative wasteland. This has resulted in the United States becoming the world’s most (gratuitously) punitive country. The imprisonment of over two million Americans is perhaps the most pressing domestic moral issue of our time. Further, the prison system is in a state of crisis due to the unsustainable cost of imprisoning at such high quantities. It was inevitable that the United States sentencing system would reach a crisis point. Criminologists and legal scholars have for several decades noted that mass incarceration is a flawed strategy. Despite this, prison numbers have continued to grow. Academic and intellectual discourse has proven ineffectual in influencing the direction of sentencing policy. The sole reason for the current political and societal focus on prison policy is the practical reality that the United States cannot continue to spend $80 billion on corrections each year. This pragmatic reason provides no basis for confidence that sentencing policy will finally become a fair and efficient practice. Sentencing is not generally considered to involve fundamental human rights considerations. This Article suggests that in order for principled reform to occur, the sentencing system needs to be fundamentally changed. In particular, the framework against which the system is evaluated should assume a human rights orientation. Examined closely, imprisonment infringes cardinal human rights including the right to procreation, family, work, privacy and physical security. Collectively, the denial of these rights is so oppressive that it would be untenable for a democratic government to pass a law denying these rights. The fact that these deprivations occur in a prison, which involves a fundamental violation of the right to liberty, makes them even more morally repugnant. Until sentencing practice and policy is viewed through the prism of human rights discourse, it will likely continue to be influenced and driven solely by populist sentiment, leading to perpetual policy disfigurement. This Article bridges the gap between human rights and sentencing by restructuring the ideological and intellectual platform through which sentencing is evaluated. In doing so, it also advances concrete reforms necessary to improve the sentencing system.

Suggested Citation

Bagaric, Mirko and Gopalan, Sandeep and Florio, Marissa, A Principled Strategy for Addressing the Incarceration Crisis: Redefining Excessive Imprisonment as a Human Rights Abuse (2016). Cardozo Law Review, Forthcoming; Deakin Law School Research Paper No. 16-32. Available at SSRN: https://ssrn.com/abstract=2773464

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

Marissa Florio

Harvard University, Law School, Students ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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