Running Head: SENTENCING SYSTEM REFORM 1
Sentencing System Reform
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“Guilt or innocence becomes irrelevant in the criminal trials as we flounder in a morass of artificial rules poorly conceived and often impossible to apply” (Burger, n.d.). Congress passes laws affecting the court system. This has changed the way sentencing occurs during different eras. Regardless of shifting view and policies, the goals of sentencing should remain the same. This includes retribution, prevention, deterrence, rehabilitation, and reparation.
There are two main styles of sentencing, depending on the criminal code and laws of each state. Indeterminate sentencing allows for a wider, almost open-ended, range of sentencing prison time. It also allows for more discretion in what punishment is ordered. It could range from fines, community service (this could be considered reparation or victim restoration), probation, or incarceration. Many feel this wide girth of sentencing allows for unfairness and prejudice in sentencing. Some even argue that there is systematic incarceration of those already in poverty. Others feel the discretion allows for each defendant and their circumstances to be and fairly and independently evaluated and sentenced. This was the most often-used system until the 1980s when a new law enforcement era came into play.
With the emergence of mandatory sentencing to fight the War on Drugs more states turned to determinate sentencing systems. This created fixed sentencing. Not only do judges have less discretion, but also “parole boards and discretionary release do not exist in determinate systems” (Lawrence, p 4). Offenses that now have mandatory sentencing include drug crimes. The number of people incarcerated “. . . skyrocketed from 40,900 in 1980 to 450,345 in 2016. Today there are more people behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980” (Criminal Justice Facts, 2017). A big reason for this is
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because of the “. . . withering of grand juries, petit juries, and judicial sentencing discretion” (Bias p 1687). Judges no longer, in a determinate system, have the ease to address sentencing differently depending on each individual case. “Mandatory minimums have proliferated and increased in severity. Since 1991, the number of mandatory minimums have more than doubled” (Bernick and Larkin, Jr. p 2).
Prosecutors behind closed doors now hold the discretion once held by judges in courtrooms. The system is no longer transparent to citizens. Prosecutors have “. . . unreviewable discretion over what charges to bring, including whether to charge a violation of a law with a mandatory minimum sentence, and over whether to engage in pleas bargaining. . .unbridled prosecutorial discretion is a greater evil than unlimited judicial discretion” (Bernick and Larkin Jr. p 3). Luckily, states are not strictly indeterminate in sentencing or just determinate in sentencing; they simply lean one direction or the other.
According the Figure 2 in Alison Lawrence’s Making Sense of Sentencing: State Systems and Policies about a dozen and a half states are primarily indeterminate and only five are considered determinate. “Half of states have added a structured component to their primary sentencing system in order to provide judges guidance, with broad sentencing ranges, on the type of length of sentence to order” (Lawrence, p 5). This allows consistency across the board for sentencing similar offense. It also gives flexibility because it considers criminal history in the guidelines. It is impossible to have a “perfect” system, but this is a good option for reducing ethical disparities when free-reign is allowed. It also helps prevent overly harsh sentencing that does not help the offender nor does it help society.
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Being sentenced does not mean that one received a trial, as the public often believes. Transparency is disappearing as the criminal justice system utilizes pela bargaining more and more. “If fact, trials are extremely rare in the American criminal justice system. . . .97% of federal convictions and 94% of state convictions are the result of guilty pleas” (Alschuler, p 921). It has been argued that this is cost effective; but it increases other costs. Plea bargaining may be part of the rising incarceration rate. Sentences are also longer thanks to mandatory sentencing charges.
This means a large part of the prison population is older. “The cost of keeping an older person locked up is about seventy thousand dollar a year or more. . .” (Wozniak, p 237). Most prisons are not set up to care for geriatric inmates with their increased health issues. In addition to physical health concerns, there is a mental health aspect (for example dementia) that needs addressed. Financial expenses are not the only cost.
Socially, the cost of higher incarceration rates are very high. This is especially true in neighborhoods and communities where there is a higher-than-average rate of imprisonment. “. . . punitive justice adhere to an eye-for-an-eye mode of justice, which ‘. . . considers none of punishment’s collateral damage within the larger community’ ” (Wozniak, p 239). It affects the work force, families, children and their education. It affects populations already struggling with poverty.
This is why there needs to be sentencing system reform. The goals of sentencing need to be remembered: retribution, prevention, deterrence, rehabilitation, and reparation. For society as
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whole to be served, more than just retribution (punishment) needs to occur. As previously mentioned, it is very expensive to house inmates. Funds would be better utilized going toward prevention programs, including education. This is especially true in impoverished neighborhoods where the population is at greater risk of incarceration affecting the community. So many children whose parents are incarcerated grow up to be behind bars as well. “. . . prevention programs could help reduce the need for future prison beds. Since most prevention programs are for young children, effective evidence-based prevention resources can be expected to affect adult prison use in the longer run. Prevention programs . . . offer other near-term and long-term advantages, such as improved education outcomes” (“Evidence-Based Public Policy”, p 2).
Prevention and deterrence are very similar. Not only would programs that help prevent younger citizens from committing crimes, they could also help deter those being released from re-offending. Inmates need more than just punishment if they are going to be a productive part of community after release. According to Quinney, what is needed is “‘nonviolent criminology of compassion and service,’ which ‘seeks to end suffering and thereby eliminate crime'” (Wozniak, 234). This also speaks to rehabilitation. A lot could be learned from Halden prison in Norway. It is “. . . the world’s ‘most humane prison’. . . which smells like coffee, cells have flat screen TVS and fluffy towels, and prisoners look out over wooded landscapes within the prison grounds” (“Prisons and prisoner behavior”, 2012). While that may sound extreme to some, the point is “. . . all prisoners are expected to return to the world outside, and ‘life behind the walls should be as much like life outside the walls as possible’ (“Prisons and prison behavior”, 2012) if they are to amalgamate successfully into society.
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It is also important to remember reparation. This is more than just serving time behind bars. True atonement can only be reached if the offender is able to help his or her victim either directly or thru paying it forward and making amends. This extends beyond simple “community service”. This justice
o “Rests on the security of a caring community that includes all and never deserts those in trouble.
o Uses the power of community to heal wrongs, and to change the world.
o Challenges the unhealthy barriers of race, class and status.
o Rebuilds community where community has broken down.
o Heals the broken-hearted, because it listens to care and cares about pain of all kinds” (Wozniak, p 234).
This all must be considered in the sentencing system to be effective for the whole of society. Justice is not vengeance. It should be about healing. Healing for the victim, the offender, and society as a whole. Perhaps then not only our sentencing system will be reformed, but so will the offenders who have been sentenced.
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Aging in prison: the ‘other life sentence’? (2012, October). Retrieved June 11, 2018, from http://carceralgeography.com
Alschuler, A. W. (n.d.). A nearly perfect system for convicting the innocent. Albany Law Review, 79(3), 919-940.
Bernick, E., & Larkin, Jr., P. J. (2014, February 14). Reconsidering mandatory minimums sentences: the arguments for and against potential reforms. Retrieved June 10, 2018, from report.heritage.org/im114
Bibas, S. (2017). Restoring democratic moral judgment within bureaucratic criminal justice. Restoring Democratic Moral Judgment, 111(6), 1677-1692.
Bureau of Justice Assistance. (n.d.). National assessment of structured sentencing.
Criminal justice facts. (2017). Retrieved June 11, 2018, from http://www.sentencingproject.org/criminal-justice-facts/
Evidence-based public policy options to reduce future prison construction, criminal justice costs, and crime rates. (2006, October). Retrieved from http://www.wsipp.wa.gov
Lawrence, A. (2015, June). Making sense of sentencing: state systems and policies.
Parke, R. D., & Clarke-Stewart, K. A. (2001, December). From prison to home: the effects of parental incarceration on children, families, and communities. Retrieved June 20, 2018, from http://aspe.hhs.gov/basic-report/effects-parental-incarceration-young-children
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Prisons and prisoner behaviour-space and effect. (2012, May 19). Retrieved June 11, 2018, from http://carceralgeography.com
The Sentencing Project. (2017). The united states is the world’s leader in incarceration. Retrieved June 10, 2018.
US Census Bureau. (2017, September 12). Income and poverty in the united states: 2016. Retrieved from https://www.census.gov/library/publications/2017/demo/p60-259.html
Warren E. Burger. (n.d.). AZQuotes.com. Retrieved June 18, 2018, from AZQuotes.com Web site: http://www.azquotes.com/author/2171-Warren_E_Burger
Washington State Institute for Public Policy. (2006, October). Evidence-based public policy options to reduce future prison construction, criminal justice costs, and crime rates. Retrieved from http://www.wsipp.wa.gov
Will, J. L., Loper, A. B., & Jackson, S. L. (2014). Second-generation prisoners and the transmission of domestic violence. Journal of Interpersonal Violence, 31(1), 100-121. doi:10.1177/0886260514555127
Wozniak, J. F. (2014). Unlocking the legal system from vengeance, harm, and punitive justice: toward a compassionate revolution of peace, caring, and unitive justice. Journal of Theoretical & Philosophical Criminology, 6(3), 232-250.