The Growth of Incarceration in the United States Exploring Causes and Consequences (2014) / Chapter Skim
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3 Policies and Practices Contributing to High Rates of Incarceration
3 Policies and Practices Contributing to High Rates of Incarceration
Pages 70-103
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From page 70... ...
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.
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From page 71... ...
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 undergirded punishment policies in the United States and other democratic countries since the Enlightenment and demonstrates that many policies enacted over the past 40 years are inconsistent with those principles.
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From page 72... ...
. A first set of sentencing guidelines developed by the Pennsylvania Sentencing Commission was rejected by the legislature after conservatives characterized them as being insufficiently severe (Martin, 1984)
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From page 73... ...
. 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 possibility of parole laws.2 Mandatory minimum sentence laws required minimum prison terms for people convicted of particular crimes.
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From page 74... ...
.4 More typically, changes in state sentencing laws created exceptions to the coverage of mandatory 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 probability of parole and probation revocations for technical offenses (Austin et al., 2013)
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From page 75... ...
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 advantage 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)
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From page 76... ...
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 sentences for most offenses.
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From page 77... ...
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.
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From page 78... ...
. Presumptive sentencing guidelines developed by a sentencing commission are the most promising means available to jurisdictions that want to reduce or avoid unwarranted sentencing disparities, improve budgetary and policy planning, or both.
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From page 79... ...
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.
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From page 80... ...
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)
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From page 81... ...
In most cases, the percentages at least doubled. The Urban Institute evaluators observed that the effects on the prison population would have been much greater had violent crime rates not fallen substantially after 1991: "Were the sentencing practices of 1996 to persist during a time when the number of violent offenses increases, the impacts on prison populations and corrections management could be dramatic" (Sabol et al., 2002, p.
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From page 82... ...
The states included in that study, however, abolished parole release as part of the first phase of modern sentencing reform when no state had enacted a modern truth-in-sentencing law. The early parole abolition initiatives were aimed at greater transparency and in some cases at reductions in unwarranted sentencing disparities.
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From page 83... ...
. Mandatory minimum sentences apply primarily to drug offenses, murder, aggravated rape, felonies involving firearms, and felonies committed by people who have previous felony convictions.
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From page 84... ...
for a discussion of habitual offender laws in Florida and mandatory minimum sentences in Pennsylvania and in the federal courts, and of how prosecutors often do not file charges that trigger these sentences.
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From page 85... ...
We now step back from this period of policy turbulence and shifting objectives to assess the changes detailed in this section against three yardsticks -- the principles of justice that underlie ideas about punishment in Western thought, the role of scientific evidence in the adoption of sentencing policies, and the unprecedented racial disparities that have resulted from the past four decades of policy changes. PRINCIPLES OF JUSTICE Reasonable people, including members of this committee, hold differing views on the purposes and goals of sentencing and punishment.
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From page 86... ...
Many laws enacted in the 1980s and 1990s required less serious crimes to be punished more severely than more serious ones. Examples include mandatory minimum sentence laws requiring longer terms for people convicted of small sales of drugs than terms typically imposed for many violent offenses, and the sentencing of people to 25-year minimum terms for property misdemeanors under California's three strikes law.
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From page 87... ...
Some people, probably most, subscribe to mixed theories in which punishments can be justified by their crime prevention effects, but only if they do not exceed what would be warranted by the seriousness of the crime. That is, retributive ideas about deserved punishment set upper limits on what can justly be done to a particular individual, but anticipated crime prevention effects may be appropriate considerations in deciding what to do within those limits (e.g., Morris, 1974; Tonry, 1994)
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From page 88... ...
If the goal is rehabilitation, then it makes little sense to use longer prison terms and incur greater expense to treat those convicted of property offenses compared with those convicted of violent offenses. If the goal is reinforcing norms, clarifying values, or reassuring the public, then it makes little sense to undermine norms
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From page 89... ...
prisons. They include enactment of mandatory minimum sentence, truth-in-sentencing, three strikes, and life without possibility of parole laws; discretionary decisions by prosecutors to charge and bargain more aggressively and by judges to impose longer sentences; and decisions by parole boards to hold many prisoners longer, deny discretionary release altogether more often, and revoke parole more often.
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From page 90... ...
The consequences of this disconnect have contributed substantially to contemporary patterns of imprisonment.15 Evidence on the deterrent effects of mandatory minimum sentence laws is just one such example. Two centuries of experience with laws mandating minimum sentences for particular crimes have shown that those laws have few if any effects as deterrents to crime and, as discussed above, foster patterns of circumvention and manipulation by prosecutors, judges, and juries (Hay, 1975)
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From page 91... ...
They are partly caused and substantially exacerbated by the mandatory minimum sentence, three strikes, truth-insentencing, life without possibility of parole, and similar laws enacted in the 1980s and 1990s. All of these laws mandate especially severe -- in recent decades unprecedentedly severe -- punishments for offenses for which black and Hispanic people often are disproportionately arrested and convicted.17 16 We do not discuss racial profiling by the police in this chapter because the extent to which it significantly contributes to high levels of incarceration is unclear.
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From page 92... ...
White and black subtotals exclude persons of Hispanic or Latino origin. bImprisonment total includes Alaska Natives, American Indians, Asians, Native Hawaiians, other Pacific Islanders, and persons identifying two or more races; white and black subtotals exclude persons of Hispanic or Latino origin.
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From page 93... ...
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 correspond closely to racial differences in imprisonment for serious violent crimes but not for property or drug crimes (Blumstein, 1982, 1993)
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From page 94... ...
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)
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From page 95... ...
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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From page 96... ...
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 violent crimes and drug offenses for which blacks are disproportionately often arrested. These two offense categories, however, raise different behavioral issues.
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From page 97... ...
. 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)
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From page 98... ...
In states that have sentencing guidelines, blacks are more likely than whites to receive sentences at the top rather than at the bottom of the guideline ranges (Tonry, 1996)
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From page 99... ...
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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From page 100... ...
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.
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From page 101... ...
During the 1970s, experiments with voluntary sentencing guidelines were undertaken in many states, and all but one state enacted mandatory minimum sentence laws typically requiring 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.
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From page 102... ...
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.
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From page 103... ...
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.
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