By almost any measure, the United States has one of the harshest and most severe sentencing systems in the world. Last month, the Department of Justice announced that almost 2.4 million Americans are incarcerated. One out of every 31 Americans is under the supervision of the criminal justice system.
It has not always been so. For most of the last century, our incarceration rates were modest and fairly steady. We incarcerated between 100 and 200 people out of every 100,000 Americans – rates that were comparable to the rates of other industrialized democracies. But then, about three decades ago, our approach to criminal justice policy changed. As politicians strove to be “tough on crime” and as law enforcement waged the “war on drugs,” our prisons began to swell. By 1980, our incarceration rate had reached 220. Since then, it has increased over 300%.
According to the latest statistics, 738 out of every 100,000 adults in the United States are locked up. There isn’t another country in the world with an incarceration rate this high. Not Russia (611). Not Cuba (487). Not South Africa (333). Not Mexico (196). And certainly not any other industrialized democracy, like England (148), Australia (126), Canada (107), Germany (95), France (85), or Japan (62). The Sentencing Project has collected the statistics.
How did we get here?
A large part of the answer lies in our approach to narcotics offenses. In the 1970s, New York’s then-Governor Nelson Rockefeller pushed a new approach to drug crime: lengthy prison sentences for modest amounts of drugs. The idea was simple. The shocking nature of these sentences would accomplish what treatment and rehabilitation could not. Drug dealers would be taken off the streets, and others would be deterred from taking their place by the fear getting similar lengthy sentences.
A decade later, the federal government followed suit, enacting tough mandatory sentences for drug crimes. The most Draconian of these sentences involve crack cocaine, which is punished at a rate 100 times greater than cocaine, even though the differences between the two drugs are negligible. Congress decreed that simple possession of five grams of crack (worth less than $200) would require a five-year prison sentence. An offense involving fifty grams of crack would require a ten-year prison sentence. Because of the patterns of drug use and drug enforcement, the burdens of this 100:1 ratio – and the burdens of the war on drugs in general – have fallen disproportionately on members of minority communities.
And “tough on crime” policies have not been limited to drug offenses. The 1980s also saw Congress transform federal sentencing by eliminating parole and creating mandatory Sentencing Guidelines. Before the Sentencing Guidelines went into effect in 1987, judges had enjoyed wide, almost unfettered, discretion. The dominant purpose of sentencing was to rehabilitate offenders, and judges were free to impose whatever sentence they felt best fit the crime and the defendant’s situation. The parole board would then decide when the defendant was sufficiently rehabilitated to be released (usually long before his sentence was complete).
The Sentencing Guidelines changed all that. Judges were required to use a mathematical formula to calculate a score for the crime, which was then combined with another mathematical formula for the defendant’s “criminal history,” and then plotted on a grid to yield a “sentencing range.” The resulting ranges were narrow, usually mandatory, and often quite severe. The goal of rehabilitation had been replaced by the goals of deterrence and incapacitation. A concern with individualization had been replaced by a devotion to uniformity.
In the 1990s, this trend toward severity continued, as more and more states eliminated parole, and most enacted some version of “three strikes and you’re out.” “Life without parole” became an increasingly popular sentence. When a California judge imposed a 50-year sentence on a repeat offender who had shoplifted three golf clubs, it wasn’t seen as outlandish. Instead, the United States Supreme Court found that the sentence was “justified” by the “public safety interest in incapacitating and deterring recidivist felons.”
This state of affairs has not escaped criticism. Indeed, most thoughtful observers agree that our current addiction to incarceration is indefensible. One prominent critic has been Supreme Court Justice Anthony Kennedy, who is not generally known as “soft” on crime. In a speech at the American Bar Association’s Annual Meeting in 2003, Justice Kennedy summarized what he saw as the deplorable state of our sentencing system. In addition to decrying the sheer number of Americans incarcerated, he noted that we spend over 40 billion dollars each year to warehouse those millions of people. Justice Kennedy also highlighted the undeniable connection between sentencing and race:
“Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.”
Justice Kennedy also lamented the demise of judicial discretion and the proliferation of mandatory minimum sentences that in too many cases are both “unwise and unjust.” Finally, he protested the dehumanizing experience of prison and our willingness to lock people up and then forget about them:
“We must try ... to bridge the gap between proper skepticism about rehabilitation on the one hand and improper refusal to acknowledge that the more than two million inmates in the United States are human beings whose minds and spirits we must try to reach.”
Justice Kennedy’s conclusion was stark and unassailable: “Our resources are misspent, our punishments too severe, our sentences too long.”
And, yet, there may be hope.
Recent developments suggest that the pendulum of severity may be swinging back toward moderation. A few years ago, the Supreme Court ruled that the Constitution requires that the federal Sentencing Guidelines be advisory, not mandatory. In two cases decided last month involving lengthy sentences imposed on drug dealers, the Court made clear that judges have discretion to impose sentences below the narrow Guidelines range if the defendant’s individual situation warrants. At the same time, the United States Sentencing Commission greatly reduced the disparity between crack sentences and cocaine sentences in the Sentencing Guidelines (though it will take Congress and the President to change the corresponding mandatory minimum sentences). This change to the Guidelines is retroactive, so that almost 20,000 prisoners are now eligible for possible sentence reductions. Eighty-six percent of those prisoners are black.
Similar trends are visible in the states. New York has rolled back some of the harshest penalties associated with the Rockefeller drug laws. And last week, the Sentencing Project released a report summarizing a wide variety of recent efforts in eighteen different states to reduce recidivism, to limit sentence lengths, and to more closely scrutinize the effectiveness of punishment policy.
And here is perhaps the most encouraging sign that some common sense is returning to sentencing. In the midst of a presidential campaign that is typically focused on other issues, at least one of the major candidates has included serious sentencing reform among his policy proposals. Barack Obama’s announced proposals include eliminating the sentencing disparity between crack offenses and cocaine offense, reducing or eliminating mandatory sentences to stop the “ineffective warehousing of non-violent drug offenders,” increasing the use of drug courts that focus on treatment instead of incarceration, and increasing programs for released offenders to reduce recidivism.
Granted, Obama is only one candidate, and his proposals relate only to federal law. But the particulars of Obama’s proposals are less important than the fact that he is willing to make them. For years, politicians have avoided even talking about sentencing reform for fear of being labeled “soft on crime.” That reticence is not surprising, as the primary beneficiaries of sentencing reform – prisoners and their communities – tend not to wield much political clout. But that only increases the moral imperative to think seriously about these issues.
Real sentencing reform will require real leadership – from our next president, from Congressional leaders, and from policy makers in all fifty states. At least one prominent politician has recognized that it is politically feasible to talk sense about sentencing. Perhaps other political leaders will realize that, after a three-decade march toward ever increasing severity, the American public may be willing to listen.