3


Policies and Practices Contributing to High Rates of Incarceration

High rates of incarceration in the United States and the great numbers of people held in U.S. prisons and jails result substantially from decisions by policy makers to increase the use and severity of prison sentences. At various times, other factors have contributed as well. These include rising crime rates in the 1970s and 1980s; decisions by police officials to emphasize street-level arrests of drug dealers in the “war on drugs”; and changes in prevailing attitudes toward crime and criminals that led prosecutors, judges, and parole and other correctional officials to deal more harshly with individuals convicted of crimes. The increase in U.S. incarceration rates over the past 40 years is preponderantly the result of increases both in the likelihood of imprisonment and in lengths of prison sentences—with the latter having been the primary cause since 1990. These increases, in turn, are a product of the proliferation in nearly every state and in the federal system of laws and guidelines providing for lengthy prison sentences for drug and violent crimes and repeat offenses, and the enactment in more than half the states and in the federal system of three strikes and truth-in-sentencing laws.

The increase in the use of imprisonment as a response to crime reflects a clear policy choice. In the 1980s and 1990s, state and federal legislators passed and governors and presidents signed laws intended to ensure that more of those convicted would be imprisoned and that prison terms for many offenses would be longer than in earlier periods. No other inference can be drawn from the enactment of hundreds of laws mandating lengthier prison terms. In the federal Violent Crime Control and Law Enforcement



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3 Policies and Practices Contributing to High Rates of Incarceration H igh rates of incarceration in the United States and the great num- bers of people held in U.S. prisons and jails result substantially from decisions by policy makers to increase the use and severity of prison sentences. At various times, other factors have contributed as well. These include rising crime rates in the 1970s and 1980s; decisions by police officials to emphasize street-level arrests of drug dealers in the “war on drugs”; and changes in prevailing attitudes toward crime and criminals that led prosecutors, judges, and parole and other correctional officials to deal more harshly with individuals convicted of crimes. The increase in U.S. incarceration rates over the past 40 years is preponderantly the result of increases both in the likelihood of imprisonment and in lengths of prison sentences—with the latter having been the primary cause since 1990. These increases, in turn, are a product of the proliferation in nearly every state and in the federal system of laws and guidelines providing for lengthy prison sentences for drug and violent crimes and repeat offenses, and the enactment in more than half the states and in the federal system of three strikes and truth-in-sentencing laws. The increase in the use of imprisonment as a response to crime reflects a clear policy choice. In the 1980s and 1990s, state and federal legislators passed and governors and presidents signed laws intended to ensure that more of those convicted would be imprisoned and that prison terms for many offenses would be longer than in earlier periods. No other inference can be drawn from the enactment of hundreds of laws mandating lengthier prison terms. In the federal Violent Crime Control and Law Enforcement 70

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POLICIES AND PRACTICES 71 Act of 1994, for example, a state applying for a federal grant for prison construction was required to show that it: (A) has increased the percentage of convicted violent offenders sen- tenced to prison; (B) has increased the average prison time which will be served in prison by convicted violent offenders sentenced to prison; (C) has increased the percentage of sentence which will be served in prison by violent offenders sentenced to prison. Yet while individual laws clearly reflected a policy choice to increase the use and length of incarceration, it is unlikely that anyone intended, foresaw, or wanted the absolute levels of incarceration that now set the United States far apart from the rest of the world. In this chapter, we describe and then assess the development of U.S. sentencing and punishment policies and practices since the early 1970s. The first section reviews the profound shifts in the U.S. approach to sentencing over the four decades of the incarceration rise, including the development of sentencing guidelines and determinate sentencing policies and more recent initiatives designed to increase the certainty and severity of prison sentences. The second section details principles of justice that have under- girded punishment policies in the United States and other democratic coun- tries since the Enlightenment and demonstrates that many policies enacted over the past 40 years are inconsistent with those principles. The third section examines the disjunction in recent decades between policy-making processes and the available social science evidence on the effects of punish- ment policies. The fourth section surveys and analyzes disproportionate and damaging effects of recent U.S. punishment policies on members of minority groups. In the committee’s view, the nation’s policy choices that increased the incarceration rate to unprecedented levels violated traditional jurisprudential principles, disregarded research evidence that highlighted the ineffectiveness and iatrogenic effects of some of those policies, and ex- acerbated racial disparities in the nation’s criminal justice system. CHANGES IN U.S. SENTENCING LAWS American sentencing policies, practices, and patterns have changed dramatically during the past 40 years. In 1972, the incarceration rate had been falling since 1961 (see Figure 2-1 in Chapter 2). The federal system and every U.S. state had an “indeterminate sentencing” system premised on ideas about the need to individualize sentences in each case and on reha- bilitation as the primary aim of punishment. Indeterminate sentencing had been ubiquitous in the United States since the 1930s. Statutes defined crimes and set out broad ranges of authorized sentences. Judges had discretion to

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72 THE GROWTH OF INCARCERATION decide whether to impose prison, jail, probation, or monetary sentences. Sentence appeals were for all practical purposes unavailable. Because sen- tencing was to be individualized and judges had wide discretion, there were no standards for appellate judges to use in assessing a challenged sentence (Zeisel and Diamond, 1977). For the prison-bound, judges set maximum (and sometimes minimum) sentences, and parole boards decided whom to release and when. Prison systems had extensive procedures for time off for good behavior (Rothman, 1971; Reitz, 2012). Few people questioned the desirability of indeterminate sentencing. The American Law Institute (1962) in the Model Penal Code, the National Commission on Reform of Federal Criminal Laws (1971) in its Proposed New Federal Criminal Code, and the National Council on Crime and De- linquency (1972) in the Model Sentencing Act all endorsed the approach. Within a few years, however, the case—and support—for indeterminate sentencing collapsed. University of Chicago law professor Albert Alschuler described the sea change: “That I and many other academics adhered in large part to a reformative viewpoint only a decade or so ago seems almost incredible to most of us today” (Alschuler, 1978, p. 552). Criticisms of indeterminate sentencing grew. Judge Marvin Frankel’s (1973) Criminal Sentences—Law without Order referred to American sen- tencing as “lawless” because of the absence of standards for sentencing decisions and of opportunities for appeals. Researchers argued that the system did not and could not keep its rehabilitative promises (Martinson, 1974). Unwarranted disparities were said to be common and risks of racial bias and arbitrariness to be high (e.g., American Friends Service Com- mittee, 1971). Critics accused the system of lacking procedural fairness, transparency, and predictability (Davis, 1969; Dershowitz, 1976). Others asserted that parole release procedures were unfair and decisions inconsis- tent (Morris, 1974; von Hirsch and Hanrahan, 1979). Not all objections focused primarily on consistency and procedural fair- ness. Conservatives objected that indeterminate sentencing allowed undue “leniency” in individual cases (van den Haag, 1975) and paid insufficient attention to punishment’s deterrent and incapacitative effects (Fleming, 1974; Wilson, 1975). Policy histories of California’s Uniform Determinate Sentencing Law of 1976 describe an alliance of liberals and conservatives favoring determinate sentencing and abolition of parole (Messinger and Johnson, 1978; Parnas and Salerno, 1978). A first set of sentencing guide- lines developed by the Pennsylvania Sentencing Commission was rejected by the legislature after conservatives characterized them as being insufficiently severe (Martin, 1984). Those criticisms sparked major changes in American sentencing and punishments, and ultimately in the scale of imprisonment. In retrospect, three distinct phases are discernible. During the first, principally from

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POLICIES AND PRACTICES 73 1975 to the mid-1980s, the reform movement aimed primarily to make sentencing procedures fairer and sentencing outcomes more predictable and consistent. The problems to be solved were “racial and other unwar- ranted disparities,” and the mechanisms for solving it were various kinds of comprehensive sentencing and parole guidelines and statutory sentencing standards (National Research Council, 1983). The second phase, from the mid-1980s through 1996, aimed primarily to make sentences for drug and violent crimes harsher and their imposition more certain.1 The principal mechanisms to those ends were mandatory minimum sentence, three strikes, truth-in-sentencing, and life without pos- sibility of parole laws.2 Mandatory minimum sentence laws required mini- mum prison terms for people convicted of particular crimes. Three strikes laws typically required minimum 25-year sentences for people convicted of a third felony. State truth-in-sentencing laws typically required that people sentenced to imprisonment for affected crimes serve at least 85 percent of their nominal sentences. The third phase, since the mid-1990s, has been a period of drift. The impetus to undertake comprehensive overhauls or make punishments sub- stantially harsher has dissipated. No states have created new comprehensive sentencing systems, none has enacted new truth-in-sentencing laws, and only one has enacted a three strikes law. Mandatory minimum sentence laws have been enacted that target carjacking, human smuggling, and child pornography, but they are much more narrowly crafted than were their predecessors.3 According to annual reports issued by the National Confer- ence of State Legislatures, several hundred state laws have been enacted since 2000 that in various ways make sentencing less rigid and less severe. Most of these laws are relatively minor and target less serious offenses. In 1  wide variety of other harsh criminal justice policies were adopted during this period, A including registration, notification, and residence laws for sex offenders and a variety of “dangerous offender” and “sexual psychopath” laws. Similar initiatives affecting the juvenile justice system lowered the top age of juvenile court jurisdiction, made discretionary transfers to adult courts easier, and excluded some violent offenses from juvenile court jurisdiction regardless of the defendant’s age. 2  Laws authorizing sentences without the possibility of parole were enacted for a number of reasons, including as part of a strategy by opponents of capital punishment to create a credible alternative to the death penalty. 3  Summaries such as this must be hedged because no organization maintains a comprehen- sive database on changes in sentencing laws. The National Conference of State Legislatures for many years compiled annual summaries (of uncertain comprehensiveness) and maintains a searchable database beginning with developments in 2010 (http://www.ncsl.org/issues- research/justice/state-sentencing-and-corrections-legislation.aspx [February 28, 2014]). The Sentencing Project (e.g., Porter, 2013), the Vera Institute of Justice (e.g., Austin, 2010), and the Public Safety Performance Project of the Pew Charitable Trusts issue occasional selective summaries. None of these, however, is comprehensive or cumulative.

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74 THE GROWTH OF INCARCERATION few cases have major punitive laws of the second period been repealed or substantially altered. High-profile changes to totemic tough-on-crime laws such as New York’s 1973 Rockefeller Drug Laws and the 1986 federal 100- to-1 law for sentencing crack and powder cocaine offenses were partial. In the first of these examples, severe mandatory penalties for many offenses continued to be required (New York State Division of Criminal Justice Services, 2012); in the second, a lower but still high—18-to-1—drug quan- tity differential for offenses involving pharmacologically indistinguishable crack and powder cocaine was established (Reuter, 2013).4 More typically, changes in state sentencing laws created exceptions to the coverage of man- datory minimum sentence laws or slightly narrowed their scope,5 expanded prison officials’ authority to grant time off for good behavior, made earlier release possible for narrow categories of prisoners, or reduced the prob- ability of parole and probation revocations for technical offenses (Austin et al., 2013). Phase I: Changes Aimed at Increased Consistency and Fairness Sentencing reform initiatives proliferated in the aftermath of the rejec- tion of indeterminate sentencing. The earliest and most incremental sought to reduce disparities through the development and use of parole guidelines and “voluntary” sentencing guidelines. These initiatives were followed by statutory determinate sentencing systems and presumptive sentencing guidelines. Parole Guidelines Parole guidelines were the first major policy initiative of the sentenc- ing reform movement, although one foot remained firmly in the individu- alization logic of indeterminate sentencing. In the 1970s, the U.S. Parole Board and boards in Minnesota, Oregon, and Washington created guideline systems for use in setting release dates. They sought to increase proce- dural fairness through the publication of release standards, reductions in 4  Although the introduction of crack cocaine was associated with an increase in drug-related violence, subsequent reductions in violence have been consistent with the aging of the crack cocaine user and trafficker populations (U.S. Sentencing Commission, 2007, p. 83). 5  Many recent changes in state mandatory minimum sentences laws authorize the imposition of some other sentence on selected offenders (Austin, 2010; Porter, 2013). Federal law long has provided such a “safety valve” for mandatory minimum sentence laws for drug crimes committed by first-time offenders who did not use violence or possess a gun and told the government all about their crime. In federal fiscal year 2012, nearly 40 percent of defendants sentenced under mandatory minimum sentence laws benefited from this provision (U.S. Sen- tencing Commission, 2013b, Table 44).

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POLICIES AND PRACTICES 75 disparities in time served by those convicted of comparable crimes, and the linking of release decisions in part to empirical evidence on prisoners’ probabilities of subsequent offending (Gottfredson et al., 1978). The parole guidelines movement quickly lost steam, however, despite evidence of the guidelines’ effectiveness, when well implemented, in improving consistency in the setting of release dates and in time served for similar offenses (Arthur D. Little, Inc., and Goldfarb and Singer, Esqs., 1981; National Research Council, 1983, pp. 194-196). The four pioneering systems were abandoned in the 1980s, replaced in each case by presumptive sentencing guideline sys- tems that also sought to achieve greater procedural fairness and consistency. One advantage of parole guidelines is that they can make case-by-case decision making within a well-run administrative agency faster, less costly, and more easily reviewable than decisions made by judges. A second ad- vantage is that, as commonly happened during the indeterminate sentencing era, parole boards can address prison overcrowding problems by adjusting release dates (e.g., Messinger et al., 1985). A major disadvantage, however, is that parole boards have authority only over those sentenced to imprison- ment. Parole guidelines can reduce unwarranted sentence-length disparities among prisoners, but not between them and others sentenced to local jails or community punishments. Voluntary Sentencing Guidelines During the 1970s, local courts and, occasionally, state judiciaries in most states created systems of voluntary sentencing guidelines (Kress, 1980; National Research Council, 1983). Today, they would usually be referred to as “advisory” guidelines. Judges were not bound to follow them and needed to give no reasons if they did not; a defendant could not appeal the judge’s decision. Most early voluntary guideline systems were abandoned or fell into desuetude. Evaluations through the late 1980s, most notably of judicially crafted systems in Maryland and Florida, showed that they had few or no effects on sentencing decisions or disparities (Rich et al., 1982; Carrow et al., 1985; Tonry, 1996, Chapter 3). Voluntary guidelines have attracted renewed interest because of two recent U.S. Supreme Court decisions (U.S. v. Booker, 543 U.S. 220 [2005], and Blakely v. Washington, 542 U.S. 296 [2004]), which created new pro- cedural requirements for presumptive sentencing guideline systems. A small number of states now operate voluntary guideline systems, but credible research evidence on their effects on sentencing disparities is not available. However, prison population growth in two especially well-known systems using voluntary guidelines—in Delaware and Virginia—has long been be- low national averages.

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76 THE GROWTH OF INCARCERATION Determinate Sentencing Laws The most influential reform proposals during this phase called for the abolition of parole release and the creation of enforceable standards to guide judges’ decisions in individual cases and provide a basis for appellate review (e.g., Morris, 1974; Dershowitz, 1976; von Hirsch, 1976). Policy makers responded. Maine in 1975 abolished parole release and thereby became the first modern “determinate” sentencing state in the sense that the length of time to be served under a prison sentence could be known, or “determined,” when it was imposed. California came second, enacting the Uniform Determinate Sentencing Act of 1976; the act abolished parole release and set forth recommended normal, aggravated, and mitigated sen- tences for most offenses. Other states—including Arizona, Illinois, Indiana, and North Carolina—quickly followed California’s lead in enacting such laws. Evaluations concluded, however, that the laws had little if any effect on sentencing disparities (Cohen and Tonry, 1983; Tonry, 1996). No ad- ditional states have created comprehensive statutory determinate sentencing systems since the mid-1980s. Presumptive Sentencing Guidelines In 1978, Minnesota enacted legislation to create a specialized admin- istrative agency—a sentencing commission—with authority to promulgate presumptive sentencing guidelines. Judges were required to provide reasons for sentences not indicated in the guidelines; the adequacy of those reasons could be appealed to higher courts. Minnesota’s guidelines took effect in 1980. Oregon, Pennsylvania, and Washington created similar systems in the 1980s. Evaluations showed that well-designed and -implemented pre- sumptive guidelines made sentencing more predictable, reduced racial and other unwarranted disparities, facilitated systems planning, and controlled correctional spending (Tonry, 1996, Chapter 3). Kansas, North Carolina, and Ohio created similar systems. The Minnesota, North Carolina, and Washington commissions oper- ated under “population constraint” policies; the aim was to ensure that the number of inmates sentenced to prison would not exceed the capacity of state prisons to hold them. The population constraint policies worked. During the periods when they were in effect, those states experienced prison population growth well below national averages. The primary policy goal of the early presumptive guideline systems was to reduce disparities and unfairness (Lieb and Boerner, 2001; Frase, 2005; Kramer and Ullmer, 2008). The approach was proceduralist and techno- cratic, focusing primarily on the development of procedures for improving consistency and predictability and of population projection models for use

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POLICIES AND PRACTICES 77 in financial and facilities planning. The primary aim of North Carolina’s guidelines was to control the size of the prison population (Wright, 2002). This aim was realized: after the guidelines took effect in 1994, North Carolina’s incarceration rate through 2011 fluctuated between 340 and 370 per 100,000 population, while most other states’ rates rose substantially. Population constraint policies made obvious sense to the early sentencing commissions and the legislatures that established them. Things quickly changed. From the mid-1980s through 1996, policy making in this area ceased to be significantly influenced by concerns about evidence, fairness, and consistency. In Minnesota, the legislature in 1989 instructed the commission to abandon its population constraint policy. In Oregon, the committee that had drafted and monitored the guidelines was disbanded, and the guidelines were trumped by a broad-based mandatory minimum sentence law enacted in 1994. The Pennsylvania Commission on Sentencing survived, but state supreme court decisions effectively converted the nominally presumptive guidelines into voluntary ones (Reitz, 1997; Kramer and Ulmer, 2008). More generally, presumptive sentencing guidelines fell from favor. The three most recent presumptive guideline systems—those of Kansas, North Carolina, and Ohio (abandoned in 2006)—were established in the mid- 1990s. A few voluntary systems have been developed since then. Sentenc- ing commissions in Florida, Louisiana, Tennessee, and Wisconsin were abolished, and Washington’s lost its staff and budget in 2011 (Frase, 2013). A number of studies have concluded that sentencing guidelines, es- pecially with population constraints, help control the size of the prison population. Marvell (1995) compared prison population growth from 1976 to 1993 in nine states that had voluntary or presumptive guidelines with the national average and concluded that guidelines based on population constraints produced lower rates of population increase. Nicholson-Crotty (2004), using prison data for 1975-1998 in a 50-state analysis, concluded that guidelines based on capacity constraints tend to moderate growth in incarceration and that guidelines not based on such constraints exacerbate it. Stemen and colleagues (2006) analyzed state sentencing patterns in the period 1975-2002 and concluded that states that adopted presumptive guidelines and abolished parole release had lower incarceration and prison population growth rates than other states. The promulgation of federal sentencing guidelines, which took effect in 1987, signaled the end of the phase of modern U.S. sentencing reform that targeted disparities and the beginning of a phase focused on increased certainty and severity. The Sentencing Reform Act of 1984 directed the U.S. Commission on Sentencing to develop guidelines for reducing disparities, to provide for nonincarcerative punishments for most nonviolent and nonseri- ous first offenses, and to be guided by a prison population constraint policy.

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78 THE GROWTH OF INCARCERATION The commission ignored the directives concerning first offenses and prison capacity and instead promulgated “mandatory” guidelines that greatly increased both the percentage of individuals receiving prison sentences and the length of sentences for many offenses (Stith and Cabranes, 1998). The federal guidelines were effectively converted from presumptive to voluntary by the U.S. Supreme Court in U.S. v. Booker, 543 U.S. 220 (2005). Presumptive sentencing guidelines developed by a sentencing commis- sion are the most promising means available to jurisdictions that want to reduce or avoid unwarranted sentencing disparities, improve budgetary and policy planning, or both. The well-documented successes of the Min- nesota, Oregon, and Washington guidelines in the 1980s and of the North Carolina guidelines since their promulgation in 1994 show that both sets of goals are attainable. Phase II: Changes Aimed at Increased Certainty and Severity Sentencing laws enacted from the mid-1980s through the mid-1990s differed substantially from most of those enacted in the preceding period. Whereas the earlier initiatives were aimed principally at making sentences more predictable and consistent and making processes fairer and more transparent, initiatives in the second phase of change in modern sentenc- ing law typically targeted making sentences harsher and more certain and preventing crime through deterrence and incapacitation. The focus shifted from fairness to certainty, severity, crime prevention, and symbolic de- nunciation of criminals. The shift toward severity took place despite three generations of efforts, often with federal demonstration project funding, to develop alternatives to incarceration (sometimes synonymously called “intermediate sanctions” or “community penalties”) (Morris and Tonry, 1990). The policy initiatives of the second phase, symbolized by the prolifera- tion of mandatory minimum sentence laws, undermined pursuit of the aims of the first phase. Two centuries of experience has shown that mandatory punishments foster circumvention by prosecutors, juries, and judges and thereby produce inconsistencies among cases (Romilly, 1820; Reekie, 1930; Hay, 1975; Tonry, 2009b). Problems of circumvention and inconsistent ap- plication have long been documented and understood. To illustrate this point with modern experience, we draw on the find- ings of the American Bar Foundation’s Survey of the Administration of Criminal Justice in the United States, which was conducted in the 1950s. According to Frank Remington, director of the project, “Legislative pre- scription of a high mandatory sentence for certain offenders is likely to re- sult in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue . . .

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POLICIES AND PRACTICES 79 thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legisla- tive charge” (Remington, 1969, p. xvii). Newman (1966, p. 179) describes how Michigan judges dealt with a lengthy mandatory minimum sentence for drug sales: “Mandatory minimums are almost universally disliked by trial judges. . . . The clearest illustration of routine reductions is provided by reduction of sale of narcotics to possession or addiction. . . . Judges . . . actively participated in the charge reduction process to the extent of refus- ing to accept guilty pleas to sale and liberally assigning counsel to work out reduced charges.” Newman (1966, p. 182) tells of efforts to avoid 15-year mandatory maximum sentences: “In Michigan conviction of armed robbery or breaking and entering in the nighttime (fifteen-year maximum compared to five years for daytime breaking) is rare. The pattern of downgrading is such that it becomes virtually routine, and the bargaining session becomes a ritual. The real issue in such negotiations is not whether the charge will be reduced but how far, that is, to what lesser offense” (Newman, 1966, p. 182). Dawson (1969, p. 201) describes “very strong” judicial resis- tance to a 20-year mandatory minimum sentence for the sale of narcotics: “Charge reductions to possession or use are routine. Indeed, in some cases, judges have refused to accept guilty pleas to sale of narcotics, but have continued the case and appointed counsel with instructions to negotiate a charge reduction.” Many individuals committing offenses targeted by mandatory punish- ments do, of course, receive them, but others on whose behalf officials circumvent the laws do not. Mandatory punishments transfer dispositive discretion in the handling of cases from judges, who are expected to be nonpartisan and dispassionate, to prosecutors, who are comparatively more vulnerable to influence by political considerations and public emotion.6 The following subsections review sentencing policy initiatives in the second phase of change in modern sentencing law. Truth-in-Sentencing Laws The term “truth-in-sentencing,” a 1980s neologism, alludes to federal “truth-in-lending” laws of the 1970s that required consumer lenders and merchants to disclose interest rates and other key financing terms. The implication is that there is something untruthful about parole release and other mechanisms that allow discretionary decisions about release dates 6  The evidence suggests that changes in sentencing laws have only short-term effects on the probability of plea-bargaining versus going to trial. Once the system adjusts to new standards, usually within 1 year or 2, traditional patterns reemerge (Feeley, 1983; Tonry, 1996, Chapter 5).

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80 THE GROWTH OF INCARCERATION to be made. Under the indeterminate sentencing systems that pervaded the United States before 1975, however, there was nothing unwarranted or untruthful about parole release. The system was meant to allow tailoring of prison terms to the rehabilitative prospects and other circumstances of indi- viduals. Maximum sentences—for example, in the American Law Institute’s (1962) Model Penal Code—were not meant to indicate how long individu- als should remain in prison but by what final date they must be released. Policy advocates in the second phase of sentencing reform, however, defined the differences between the sentences announced by judges and the time served by prisoners as a problem that needed fixing. For example, U.S. Attorney General William Barr, writing a preface to a U.S. Department of Justice (1992) report titled The Case for More Incarceration, for example, argued that “prison works,” urged that the number of people in prison be increased, and proposed a major national program of prison construction. Barr emphasized that most prisoners were released before their maximum sentences expired, pointed out that some committed offenses after release that would not have occurred had they been locked up, and implicitly urged that discretionary parole release be abandoned as a way to achieve more incarceration.7 Proposals like Barr’s were later enacted in the Violent Crime Control and Law Enforcement Act of 1994. The act authorized $8 billion for distri- bution to states to pay for the construction of additional prisons, although much less was ultimately appropriated.8 To qualify for a substantial portion of these funds, states had to demonstrate that violent offenders would be required to serve at least 85 percent of the sentence imposed. Twenty-eight states and the District of Columbia satisfied this and the other federal cri- teria (Sabol et al., 2002, Table 1.3). Evaluators at the Urban Institute sought to determine how truth-in- sentencing laws affected sentencing patterns and prison populations. They were unable “to draw general conclusions about the effects of truth-in- sentencing on sentencing practices throughout the nation” (Sabol et al., 2002, p. vi), but found that the laws had large projected effects in some of the seven states they examined closely. When implemented as part of a comprehensive change to the sentencing system, “truth-in-sentencing laws were associated with large changes in prison populations.” In one state, “the increase in the percentage of sentences required to be served before 7 Parole abolition was also a goal of policy advocates in the first sentencing reform phase but for different reasons—because parole release disparities were unfair to prisoners and frustrated achievement of the goals of consistency and proportionality in sentencing (von Hirsch and Hanrahan, 1979). Sixteen states abolished parole for those reasons from the 1970s through the 1990s. 8 The average annual state grant was $7,885,875, which U.S. Department of Justice officials estimated would pay for construction of space for 50 prisoners (Sabol et al., 2002, p. 28).

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POLICIES AND PRACTICES 93 We focus here primarily on disparities affecting blacks, only occasion- ally adverting to Hispanics, for several reasons.18 The most important is that disparities affecting blacks have long been much more acute than those for any other group. Second, the unique history of slavery, Jim Crow laws, and legally sanctioned discrimination that ended only 50 years ago gives particular salience to patterns of disparate treatment affecting blacks. Third, for the first two reasons, the literature on disparities affecting blacks is vastly larger. Understanding extraordinary racial disparities in imprisonment is a critical challenge facing the nation. As described in Chapter 4, the political and social context in which current policies unfolded has a pronounced racial dimension. In this section, we discuss three different kinds of racial disparity. The first concerns differences in the probability that blacks and whites are in prison on an average day. In 2011, for example, the combined fed- eral and state incarceration rate for non-Hispanic black men (3,023 per 100,000) was more than six times higher than that for non-Hispanic white men (478). The Hispanic rate (1,238) was slightly more than two-and-one- half times the white rate (Carson and Sabol, 2012, Table 8). The second kind of disparity concerns racial differences in rates of imprisonment relative to group differences in offending. People are sent to prison because they are convicted of crimes, so it is natural to ask whether disparities in imprisonment rates correspond to disparities in criminality. In the 1980s and early 1990s, racial differences in arrests appeared to cor- respond closely to racial differences in imprisonment for serious violent crimes but not for property or drug crimes (Blumstein, 1982, 1993). In the 2000s, racial differences in arrests do not correspond closely to racial dif- ferences in imprisonment for violent, property, or drug crimes (Tonry and Melewski, 2008; Baumer, 2010). The third kind of disparity concerns racial differences in sentencing and case processing after controlling for legally relevant differences among offenses. A sizable literature has long shown and continues to show that blacks are more likely than whites to be confined awaiting trial (which in- creases the probability that an incarcerative sentence will be imposed), to receive incarcerative rather than community sentences, and to receive longer 18  Demographic differences explain in part why imprisonment rates are higher for Hispanics than for non-Hispanic whites (Tonry, 2012). The Hispanic population is much younger, and, consistent with research on age-crime curves, proportionately more Hispanics are in their high-crime ages. In 2008, nearly 44 percent of U.S. Hispanics were under 25, compared with 30 percent of non-Hispanic whites (U.S. Department of Commerce, 2010, Table 10). In 2010, among people arrested for violent crimes, 42.8 percent were under 25 (Maguire, n.d., Table 4.7.2010).

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94 THE GROWTH OF INCARCERATION sentences. Racial differences found at each stage are typically modest, but their cumulative effect is significant (Tonry, 2011a; Spohn, 2013). Disparities in Imprisonment Rates Relative to Population Racial disparities in imprisonment are of long standing but worsened substantially in the 1980s and early 1990s. For a century before the 1960s, black people had been more likely to be held in prison than whites. As shown in Chapter 2, racial disparities in imprisonment began to rise in the 1960s and reached all-time highs in the 1980s and early 1990s. In recent years, differences in incarceration rates have slightly lessened. In absolute numbers, however, federal and state prisons in 2011 held more non-Hispanic black (581,000) than non-Hispanic white (516,000) inmates. In 2012, 13 percent of U.S. residents were non-Hispanic blacks, and 63����� ���� per- cent were non-Hispanic whites. Disparities in Imprisonment Rates Relative to Offending The critical question about imprisonment disparities is whether they re- sult from group differences in criminality or from group differences in how cases are handled. If racial disparities in imprisonment perfectly mirrored racial patterns of criminality, then an argument could be made that the dis- parities in imprisonment were appropriate.19 However, if racial disparities in imprisonment resulted entirely from differences in case processing, then they would violate principles of fairness and equal treatment. Disparities in imprisonment result from a combination of differences in offending patterns and case processing. Disentangling in detail the respective roles of each is difficult. Some insights can be gained from comparing data from victimization surveys on the characteristics of assailants whom victims can identify, but those data are limited and cover only a small category of offenses. The closest scholars have come is to compare racial patterns of ar- rests for particular offenses with racial patterns in imprisonment for those of- fenses. As Table 3-3 shows, racial disparities in imprisonment have worsened substantially since the early 1990s relative to racial patterns of involvement in serious crimes. A classic and influential analysis of racial disparities in imprisonment in 1979 (Blumstein, 1982) concluded that racial patterns of arrests “ex- plained” a large proportion of the disparities, especially for serious violent 19  As Chapter 2 shows, however, group differences in imprisonment are strongly associ- ated with racial and economic differences in education and employment. Important policy issues concerning the sources of those differences and their remediability would remain to be addressed.

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POLICIES AND PRACTICES 95 TABLE 3-3  Racial Disparities in Imprisonment Not “Explained” by Arrests, 1979-2008 Offense 1979 (%) 1991 (%) 2004(%) 2008 (%) Murder and Non-negligent 2.8 –35 11.6 40 Homicide Forcible Rape 26.3 23.2 18.2 Robbery 15.6 11 37.2 44.7 Aggravated Assault 5.2 58.8 54.7 Larceny 44.3 Larceny/Auto Theft 45.6 39.0 Burglary 33.1 25 45.5 44.3 Auto Theft 16.7 Drug Offenses 48.9 50 57.4 66.2 All Offenses 20.5 24 38.9 45.0 NOTE: “All offenses” includes, in addition to the categories shown, “other violence,” “other property,” “public order,” and “other/unspecified” offenses. SOURCES: For 1979: Blumstein (1982); for 1991: Blumstein (1993, Table 2); Baumer (2010); for 2004: Tonry (2011a, Table 2.4); for 2008: Baumer (2010). crimes, and for all offenses left only 20.5 percent “unexplained.” For three serious violent crimes, small fractions of disparities in imprisonment were unexplained: murder and non-negligent homicide (2.8 percent), aggravated assault (5.2 percent), and robbery (15.6 percent). For larceny and auto theft (combined) and drug offenses, nearly half the racial disparity in imprison- ment was unexplained. Blumstein reasoned that if the percentages of black and white people held in prison for a particular offense, say, homicide, closely paralleled black and white percentages among those arrested, it would be reasonable to infer that racial patterns of involvement in crime were the primary reason for disparities in imprisonment. Blumstein’s analysis cannot prove that ra- cial bias and stereotyping had no or little influence on sentencing patterns. He argued, though, that it was reasonable to infer that their influence was relatively small. His conclusions were confirmed by Langan (1985), who used victim data instead of arrests and prison admission data rather than population data. Blumstein’s (1982) conclusions also were confirmed by his subsequent analysis of 1991 data, which found that arrest patterns ex- plained all but 24 percent of overall disparities in imprisonment (Blumstein, 1993). Arrest data may be potentially misleading indicators of crime to the extent that they are distorted by bias in victims’ decisions to report alleged crimes and in police decisions to record them. Yet there are good reasons to believe that the racial patterns shown by arrest data are reasonably accurate indicators of crimes committed, at least for serious violent crimes. Victims’

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96 THE GROWTH OF INCARCERATION descriptions of the racial characteristics of assailants and police data on victim-offender relationships in homicides have for 30 years indicated, at least for serious crimes, that racial offending patterns shown in arrest data do not deviate far from reality (Langan, 1985; Tonry, 2011a, Figure 2.7). Other, more rigorous methods might be imagined for assessing relation- ships between racial patterns in crime rates and imprisonment over time at the aggregate national level, but such studies have not been carried out and published. Blumstein’s analysis was widely cited over several decades as providing convincing evidence that bias and stereotyping are not the pri- mary cause of racial disparities in imprisonment. However, replications us- ing data for more recent years have found that arrests explain much lower percentages of imprisonment disparities relative to Blumstein’s early studies. These findings are consistent with data reported in Chapter�������������  ������������ 2 on the in- creasing disjunction between racial patterns in crime and in imprisonment. Analyses for 2004 (Tonry and Melewski, 2008) and 2008 (Baumer, 2010) using the same method as that used by Blumstein show that, relative to ar- rest patterns, racial disparities in imprisonment became much worse in the twenty-first century compared with those found by Blumstein for 1979 and 1991. For 2004, 39 percent of overall disparities in imprisonment could not be explained by reference to arrests, and for 2008, 45 percent. Baumer (2010) concluded that for 2008, 40 percent of disparities in imprisonment for murder, 45 percent for robbery, 55 percent for aggravated assault, and 66 percent for drug offenses could not be explained by arrest patterns. Different racial patterns of involvement in violent crime thus are part of the reason for disparities in imprisonment, but they can explain neither why disparities increased in the 1970s and 1980s nor why they remain so high in the twenty-first century. First, no significant shifts in racial patterns in arrests for violent crimes occurred in the 1970s and 1980s that could explain why black incarceration rates rose after the 1960s. Second, as discussed in Chapter 2, the relative over involvement of blacks in violent crimes has declined significantly since the 1980s. The reason for increased racial disparities in imprisonment relative to arrests is straightforward: severe sentencing laws enacted in the 1980s and 1990s greatly increased the lengths of prison sentences mandated for vio- lent crimes and drug offenses for which blacks are disproportionately often arrested. These two offense categories, however, raise different behavioral issues. For reasons of social disadvantage, neighborhood residence, and limited life chances that disproportionately affect them, blacks relative to whites have been more involved in violent crime and are more frequently arrested for such crimes (e.g., Sampson, 1987; Sampson and Wilson, 1995; Land et al., 1990; see Sampson and Lauritsen [1997] for a review). Thus one reason why black Americans are disproportionately affected by tougher sentencing policies for violent crime is that they are more often arrested for

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POLICIES AND PRACTICES 97 such crimes—even though the black-white difference in these arrest rates has been declining since the 1980s. For drug crimes, the situation is different. As suggested in Chapter 2, the disproportionate numbers of arrests of black people for drug crimes bear little relationship to levels of black Americans’ drug use or involve- ment in drug trafficking (e.g., Western, 2006, pp. 41, 45-48; a detailed case study of racial disparity in drug arrests is provided by Beckett and colleagues [2006]). Black people are, however, arrested for drug offenses at much higher rates than whites because of police decisions to emphasize arrests of street-level dealers (Beckett et al., 2005, 2006; Mitchell and Caudy, 2013). Legislative decisions also have specified the longest sentences for crack cocaine offenses, for which blacks are arrested much more often than whites. As the late Senator Daniel Patrick Moynihan (1993, p. 362) observed: “It is essential that we understand that by choosing prohibition [of drugs] we are choosing to have an intense crime problem concentrated among minorities.” Disparities in Sentencing and Case Processing The committee’s review of the literature justifies the conclusion that racial bias and discrimination are not the primary causes of disparities in sentencing decisions or rates of imprisonment. There are differences, but they are relatively small. No doubt they result partly from the various forms of attribution and stereotyping discussed below. Minority defendants are, however, treated differently at several stages of the criminal justice process, and those differences influence resulting disparities. We agree with the Na- tional Research Council’s panel on sentencing research that “even a small amount of racial discrimination is a matter that needs to be taken very seri- ously, both on general normative grounds and because small effects in the aggregate can imply unacceptable deprivations for large numbers of people. Thus even though the effect of race in sentencing may be small compared to that of other factors, such differences are important” (National Research Council, 1983, p. 92). The empirical literature on sentencing documents relatively small racial differences in the justice system experiences of black and white individuals with comparable criminal records and convicted of the same crime. Blacks and Hispanics are more likely than whites to be detained before trial; as noted earlier, being detained increases the probability that a prison sentence will be imposed (e.g., Demuth and Steffensmeier, 2004; Spohn, 2009). Al- though the evidence is not entirely consistent, the clear weight of research findings is that race and ethnicity affect charging and plea bargaining deci- sions in both capital and noncapital cases (Crutchfield et al., 1995; Miller and Wright, 2008; Spohn, 2013).

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98 THE GROWTH OF INCARCERATION Black and Hispanic defendants, all else being equal, are somewhat more likely than whites to be sentenced to incarceration, and among those sentenced to incarceration in federal courts to receive somewhat longer sentences (Crutchfield et al., 2010; Spohn, 2013). Blacks are less likely than whites to be diverted to nonincarcerative punishments. In states that have sentencing guidelines, blacks are more likely than whites to receive sen- tences at the top rather than at the bottom of the guideline ranges (Tonry, 1996). Individual studies present divergent findings, often showing small disparities by race and ethnicity for men but not for women (or to different extents), for Hispanics but not for blacks, and for young but not for older offenders (or in each case vice versa) (e.g., Walker et al., 2006; Harrington and Spohn, 2007, pp. 40-45). Overall, when statistical controls are used to take account of offense characteristics, prior criminal records, and personal characteristics, black defendants are on average sentenced somewhat but not substantially more severely than whites. As noted above, however, small differences in this area matter. Spohn (2013, p. 168) concludes her recent exhaustive survey of disparity research thus: “Whether because of conscious bias, unconscious stereotypes linking race with crime, or colorblind applica- tion of racially tinged policies, judges’ and prosecutors’ decisions regarding bail, prosecution, and sentencing are not racially neutral.” While there is not convincing evidence of widespread racial bias in sentencing, there is, in contrast with several decades ago, credible evidence that black defendants are treated differently. Before 1980, many studies appeared to show systematic bias in sentencing of black defendants, but subsequent analyses concluded that failure to control for legally relevant sentencing factors, such as prior criminal record, seriously undermined the persuasiveness of those findings (e.g., National Research Council, 1983; Hagan and Bumiller, 1983). Reviews of subsequent research, however, concluded that blacks were treated less favorably than whites at a number of stages—for example, in pretrial detention decisions, prosecutorial charg- ing decisions, and decisions to impose community rather than incarcerative punishments—and that the cumulative effect of small differences at each stage was substantial (e.g., Zatz, 1987; Chiricos and Crawford, 1995; Mitchell, 2005). Research on death penalty decisions similarly shows that the race of the victim plays a role in both charging and sentencing decisions (Sorensen and Wallace, 1999; Lee, 2007); this is especially evident in cases of interracial violence (Gross and Mauro, 1989; Baldus et al., 1990). The finding that discernible racial differences exist in sentencing and case processing is disheartening. Race should not matter when criminal sentences are imposed. Viewed differently, however, the finding is not sur- prising. Americans of every racial and ethnic group are influenced by ste- reotypes about black people’s involvement in crime. This is not to say that most Americans are bigoted or racist. Few white Americans still believe in

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POLICIES AND PRACTICES 99 the racial inferiority of black people, and most believe racial discrimina- tion is wrong. Among earlier generations of white Americans, the belief that blacks are racially inferior to whites was commonplace. Those beliefs largely disappeared after the 1960s, sometimes to be replaced by other unflattering stereotypes (Unnever, 2013). Since the 1970s, large majori- ties of whites have favored integrated schools, accepted having blacks as neighbors, and believed that blacks and whites are of equal intelligence (Thernstrom and Thernstrom, 1997, pp. 498-501). One typical and detailed survey of research on racial attitudes concluded that Americans’ endorse- ment of racial equality norms is nearly universal: Almost all whites genuinely disavow the sentiments that have come to be most closely associated with the ideology of white supremacy—the immutable inferiority of blacks, the desirability of segregation, and the just nature of discrimination in favor of whites. In this sense, nearly every white person today has a genuine commitment to basic racial equality in the public sphere (Mendelberg, 2001, pp. 18-19). Comprehensive recent surveys of a range of literatures on racial attitudes have reached similar conclusions (e.g., Krysan, 2012).20 Whites, and members of other groups, nonetheless are influenced by racial stereotypes (Kirschenman and Neckerman, 1991). Sociologists use the term “statistical discrimination” to describe the attribution of char- acteristics of groups to individuals (Wilson, 1987) as when, for example, employers’ preconception that inner-city minority men are less likely than others to be reliable workers leads them to reject reliable applicants (Pager, 2007). These issues are discussed further in Chapter 8. Several literatures document the existence and force of racial stereotyp- ing about crime and criminals. The media commonly portray a world of black offenders and white victims. When asked to describe typical violent criminals and drug dealers, white Americans often describe black individu- als (e.g., Entman, 1992; Reeves and Campbell, 1994; Beckett and Sasson, 2004). Research on the influence of skin tone and stereotypically African American facial features shows that negative stereotypes operate to the det- riment of blacks in the criminal justice system. They cause black individuals to be punished more severely than whites, and among blacks they cause dark-skinned people and people with distinctively African American facial 20  This does not mean that racial anxieties and attitudes toward criminal justice have ceased to matter. Racial resentments and anxieties are major predictors of whites’ support for harsh sentencing and punishment policies and their opposition to increased public expenditure on social welfare programs (Bobo and Johnson, 2004; Bobo and Thompson, 2006; Peffley and Hurwitz, 2010; Unnever, 2013).

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100 THE GROWTH OF INCARCERATION features to be punished more severely than light-skinned people and people with more European features. This form of stereotyping, known as “colorism,” places darker-skinned American blacks at a comparative disadvantage in most spheres of life (Hochschild and Weaver, 2007).21 Dark skin evokes fears of criminality (Dasgupta et al., 1999) and is an easily remembered characteristic of a purportedly criminal face (Dixon and Maddox, 2005). For example, an analysis of more than 67,000 male felons incarcerated in Georgia showed that controlling for type of offense, socioeconomic characteristics, and demographic factors, dark-skinned blacks received longer sentences than light-skinned blacks: light-skinned black defendants received sentences in- distinguishable from those of whites, while longer sentences were received by medium-skinned (a year longer on average) and dark-skinned (a year and a half longer on average) black defendants (Hochschild and Weaver, 2007, p. 649). Studies of Afrocentric feature bias take the analysis one step further (Blair et al., 2004). The evidence confirms the hypothesis that stereotypi- cally African American facial features (e.g., dark skin, wide nose, full lips) influence decision makers’ judgments (Blair et al., 2002, 2005; Eberhardt et al., 2004). Pizzi and colleagues (2005, p. 351) measured facial features of black and white defendants and concluded that practitioners treated differ- ently not only black but also white defendants with such features: Racial stereotyping in sentencing decisions still persists. But it is not a function of the racial category of the individual; instead, there seems to be an equally pernicious and less controllable process at work. Racial ste- reotyping in sentencing still occurs based on the facial appearance of the offender. Be they white or African American, those offenders who possess stronger Afrocentric features receive harsher sentences for the same crimes. Even death penalty decisions are influenced by facial features. Look- ing at cases in Philadelphia in which death had been a possible sentence, Eberhardt and colleagues (2006, p. 383) “examined the extent to which perceived stereotypicality of black defendants influenced jurors’ death- sentencing decisions in cases with both white and black victims.” With stereotypicality as the only independent variable, 24.4 percent of black defendants rated below the median in having stereotypical black features 21  Colorism is defined as the “tendency to perceive or behave toward members of a racial cat- egory based on the lightness or darkness of their skin tone” (Maddox and Gray, 2002, p. 250). Empirical research on the subject is comparatively new, but the phenomenon is old. Seventy years ago, Myrdal (1944, p. 697) observed in An American Dilemma: The Negro Problem and Modern Democracy, “Without a doubt a Negro with light skin and other European features has in the North an advantage with white people.”

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POLICIES AND PRACTICES 101 were sentenced to death, compared with 57.5 percent of those rated above the median. The Implicit Association Test (IAT),22 which has been taken by mil- lions of people, was developed by psychologists to assess people’s attitudes toward members of different groups. The IAT results have consistently shown that implicit bias against blacks is “extremely widespread” (Jolls and Sunstein, 2006, p. 971) and demonstrate the existence of unconscious bias by whites against blacks (Rachlinski et al., 2009).23 It would be remarkable if criminal justice practitioners were not affected by this bias.24 CONCLUSION A number of lessons emerge from this look back at the past four de- cades of changes in sentencing policy. Successive waves of change swept the nation, some affecting all or most states. During the 1970s, experiments with voluntary sentencing guidelines were undertaken in many states, and all but one state enacted mandatory minimum sentence laws typically re- quiring minimum 1- or 2-year sentences or increases of 1 or 2 years in the sentences that would otherwise have been imposed. During the 1980s, the federal government and nearly every state enacted mandatory minimum sentence laws for drug and violent crimes, typically requiring minimum sentences of 5, 10, and 20 years or longer. During the 1990s, the federal government and more than half the states enacted truth-in-sentencing and three strikes laws. Almost all of the states now have life without possibility of parole laws. Voluntary guidelines and statutory determinate sentencing laws proved ineffective at achieving their aims of increasing consistency and diminishing racial and other unwarranted sentencing disparities. There is 22  The IAT asks individuals to categorize a series of words or pictures into groups. Two of the groups—“black” and “white”—are racial, and two are characterizations of words as “good” or “pleasant” (e.g., joy, laugh, happy) or “bad” or “unpleasant” (e.g., terrible, agony, nasty). To test for implicit bias, one version of the IAT asks respondents to press one key on the computer for either “black” or “unpleasant” words or pictures and a different key for “white” or “pleasant” words or pictures. In another version, respondents are asked to press one key for “black” or “pleasant” and another key for “white” or “unpleasant.” Implicit bias is defined as faster responses when “black” and “unpleasant” are paired relative to “black” and “pleasant.” 23  People taking the IAT at the Project Implicit website are regularly warned that they may find the results of their own test disturbing: “Warning: This test has been taken more than one million times, and the results usually reveal some degree of bias” (http://www.understanding- prejudice.org/iat/ [February 28, 2014]). 24  Almost all demographic groups show a significant implicit preference for whites over blacks. The major exception is blacks: equal proportions show implicit preferences for blacks and for whites, but unlike whites they do not show a preference for their own group. The consensus view of the existence of implicit racial bias is based on the results of millions of tests of every imaginable group in the population.

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102 THE GROWTH OF INCARCERATION little convincing evidence that mandatory minimum sentencing, truth-in- sentencing, or life without possibility of parole laws had significant crime reduction effects. But there is substantial evidence that they shifted sentenc- ing power from judges to prosecutors; provoked widespread circumvention; exacerbated racial disparities in imprisonment; and made sentences much longer, prison populations much larger, and incarceration rates much higher. The policy initiatives that swept the nation were by and large ineffec- tive at creating just, consistent, and transparent sentencing systems. The more targeted approaches—parole and presumptive sentencing guidelines, especially when incorporating prison capacity constraints—were effective. Both parole and presumptive sentencing guidelines, when well designed and implemented, can demonstrably improve consistency, reduce disparity, and make these critical decisions more transparent. Presumptive sentencing guidelines incorporating prison capacity constraints offer a proven method for setting sentencing priorities, minimizing disparities, controlling prison population growth, and managing correctional budgets. The evidence discussed in this chapter points to four main findings. First, law reform initiatives aimed at achieving greater fairness, con- sistency, and transparency in sentencing have achieved their goals more successfully than initiatives aimed at achieving greater severity, certainty, and crime prevention. Second, social science evidence on the effectiveness of sanctions and the operation of the justice system informed the development of parole and sen- tencing guidelines but had little influence on the development of initiatives aimed at achieving greater severity, certainty, and crime prevention. The evidence base on sentencing is broader and deeper now than in the 1980s and 1990s, but the primary findings have not changed significantly since they were disseminated in a series of National Research Council reports between 1978 and 1986. Third, initiatives aimed at achieving greater severity, certainty, and crime prevention were largely incompatible with fundamental and widely shared ideas about just punishment that have characterized the United States and other Western countries since the Enlightenment. Many of the punishments imposed under the new laws have violated the principle of proportionality—that punishment should be proportionate to the indi- vidual’s culpability and the gravity of the offense. Many also have violated the principle of parsimony—that punishments should be no more severe than is required to achieve their legitimate purposes. Fourth, racial and ethnic disparities in imprisonment reached extreme and unprecedented levels in the 1980s and 1990s and have since remained at deeply troubling levels. They are partly caused and significantly exac- erbated by recent sentencing laws aimed at achieving greater severity, cer- tainty, and crime prevention and by law enforcement strategies associated

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POLICIES AND PRACTICES 103 with the war on drugs. They also result partly from small but systematic racial differences in case processing, from arrest through parole release, that have a substantial cumulative effect. And they are influenced by conscious and unconscious bias and stereotyping that remain pervasive in America despite the near disappearance of widespread beliefs about racial superior- ity and inferiority.