Mitigating America's Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing

61 Pages Posted: 29 Sep 2019

See all articles by Mirko Bagaric

Mirko Bagaric

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

Gabrielle Wolf

Deakin University, Geelong, Australia - Deakin Law School

William Rininger

University of Akron, School of Law, Students

Date Written: October 16, 2018

Abstract

The United States is in the midst of an unprecedented mass incarceration crisis. Financially, this is no longer readily sustainable, even for the world’s largest economy. Further, the human suffering that prison causes is no longer tolerable from the normative perspective. Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis. The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment. In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation. A more progressive and often effective means of protecting the community is by rehabilitating offenders. In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise. Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders. This is attributable, at least in part, to scepticism regarding the capacity of criminal sanctions to reform offenders. This approach is flawed. Empirical data establishes that many offenders can be rehabilitated. In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal. First, it is necessary to promulgate rehabilitation as a means of protecting the community. Second, we propose that the role of rehabilitation in sentencing should be expanded. In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offences. In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria. To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions. The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

Keywords: Incarceration, Rehabilitation, Sentencing, Community Protection, Crisis

Suggested Citation

Bagaric, Mirko and Wolf, Gabrielle and Rininger, William, Mitigating America's Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing (October 16, 2018). Lewis & Clark Law Review, Vol. 22, 2018; Deakin Law School Research Paper No. 10-06 (2019). Available at SSRN: https://ssrn.com/abstract=3454952

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

Gabrielle Wolf

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

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

William Rininger

University of Akron, School of Law, Students

Akron, OH
United States

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