Bringing Sentencing into the 21st Century: Closing the Gap between Practice and Knowledge by Introducing Expertise into Sentencing Law

Abstract

The United States is experiencing a mass incarceration crisis. More Americans are imprisoned per capita than any other people on earth, and by a large margin. The financial toll of current rates of imprisonment on the American community is no longer sustainable, and the hardship inflicted by imprisonment on the great majority of prisoners is morally unjustifiable. The striking aspect about this crisis is that it was utterly predictable. For decades, sentencing experts have noted that several objectives that have been pursued to justify harsher sentences, such as general deterrence and general incapacitation, are flawed. These warnings have been ignored by law-makers, who instead have pursued an unremitting “tough on crime” agenda. This has resulted in an almost total disregard of expertise in sentencing law and a substantial gulf between practice and what is achievable in sentencing law. This Article argues that the major causes of the crisis are long-standing punitive attitudes to criminal justice in American society. These attitudes have been fueled by discrimination against African Americans, as well as the crime wave from about 1960 to 1980; economic instability over the past three decades and the privatization of aspects of criminal justice policy. In addition, the failure of lawmakers and scholars to give content and meaning to the principle of proportionality has enabled the “tough on crime” agenda to flourish unabated. This Article proposes solutions that will overcome or reduce these obstacles, thereby clearing the path for evidence-based sentencing reforms. Implementing the reforms will considerably reduce the incarceration rate, save the community billions of dollars and not diminish community safety. Importantly, now is the opportune time to undertake an analysis of this nature. Criminals have no political capital and engender little community empathy, however, for the first time in recent decades there is some prospect that law-makers will consider undertaking principled reform of this area. The unsustainable cost of current incarceration levels has led to wide-ranging political and community debate regarding sentencing reform, and it is now a common topic in mainstream media. This Article proposes measures to capitalize on the receptiveness to sentencing reform with a view to being a further catalyst for wide-ranging, progressive sentencing changes.

Keywords: Sentencing, Mass Incarceration, Causes, Solutions

JEL Classification: K14