Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise As a Pathway to Meaningful Reform

Buffalo Law Review, Vol 67, 2019

46 Pages Posted: 8 Apr 2019

See all articles by Mirko Bagaric

Mirko Bagaric

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

Daniel McCord

Northwestern University, School of Law, Students

Date Written: January 3, 2019

Abstract

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is not coordinated; nor is it consistent in its approach, but the movement is unmistakable. This ground up approach to reducing prison numbers suffers from the misgiving that it is an ineffective solution to a complex issue. While prison numbers are reducing, it is at a glacial rate. Pursuant to current trends, it would take five decades to reach incarceration levels that are in keeping with historical levels in the United States, and which are in line with prison numbers in most other countries. The massive growth in prison numbers during the latter half of the twentieth century was as a result of a coordinated tough on crime strategy, spawned by the War on Drugs and the implementation of harsh mandatory sanctions. The response to these policy failings must be equally coordinated and systematic in order to be effective. This Article provides the theoretical and empirical framework that can be used by lawmakers to tap into the community appetite to reduce prison numbers to make changes that are efficient and normatively sound, and which will significantly accelerate the decarceration process. In broad terms, the Article proposes a bifurcated system of sentencing, whereby sexual and serious violent offenders are imprisoned while other offenders (such as those who commit property, immigration and drug offenses) are dealt with by other forms of sanctions. The changes will especially benefit African American and Hispanics, given that they are incarcerated at disproportionately high levels. The empirical evidence also suggests that the proposed reforms will not result in an increased crime rate.

Keywords: sentencing, mass incarceration, solutions

Suggested Citation

Bagaric, Mirko and McCord, Daniel, Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise As a Pathway to Meaningful Reform (January 3, 2019). Buffalo Law Review, Vol 67, 2019. Available at SSRN: https://ssrn.com/abstract=3345870

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

Daniel McCord

Northwestern University, School of Law, Students

Evanston, IL 60208
United States

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