There’s plenty of talk about ending “mass incarceration” in the United States, but before now, few detailed plans to accomplish it.
Law Prof. Michael Tonry of the University of Minnesota has taken a step to fill that gap by laying out what he calls a blueprint to remodel the American sentencing system. In a new special issue of the journal “Criminology & Public Policy,” Tonry presents a detailed plan to slash the 2.3 million population in U.S. prisons and jails. So far, few policymakers have been bold enough to endorse the kind of measures he advocates.
Two major features of current state and federal criminal codes must be changed, Tonry maintains: “The severe sentencing laws enacted in the 1980s and 1990s must be repealed or greatly cut back,” and “meaningful limits, scaled to offense seriousness, must be placed on the lengths of lawful sentences.”
Tonry singles out “three strikes” and mandatory-minimum sentence laws, which he maintains should be repealed or at least narrowed in scope. (Three strikes laws requiring life sentences on a person’s third conviction were enacted by many states and the federal government starting in 1993. None has been repealed.)
Another target are “life without parole” sentences.
Tonry acknowledges that such terms are favored as an alternative to capital punishment, but he says “that argument is hard to make with a straight face in a country that executes 50 people a year but holds 50,000 in prison” on life without parole terms.
“Few, if any, of them were spared death sentences,” he says.
“Truth in sentencing” laws also come in for condemnation by Tonry. In practice, he says, they encourage “extraordinarily long sentences (that) are cruel, costly, and ineffective.”
Many state laws termed “truth in sentencing” that require convicts to serve at least 85 percent of their stated terms were enacted in the 1990s to make states eligible for federal anticrime funds to help build prisons.
Criminal codes should be rewritten to match sentences to the level of seriousness of various crimes, Tonry contends. Serious offenses might be classified into six categories with maximum sentences of 1, 2, 4, 6, 8, and 10 years, or longer for a “small number of carefully defined very serious cases.” The numbers Tonry uses are much lower than are provided in most mandatory minimum sentence laws.
These penalties should be embodied in sentencing guidelines established by state panels, Tonry writes. Several states have experimented with guidelines over the years, with mixed results. The Supreme Court made a set of federal sentencing guidelines advisory for judges rather than mandatory, as Congress had voted.
Among other points in Tonry’s blueprint: every state should have a parole guideline system; every state should cut its incarceration total in half by 2020; and inmates generally should be eligible for release after serving 5 year terms, or three years for those 35 and older, on the ground that “little public benefit is gained from the confinement of older inmates.”
Tonry is quick to concede that it is questionable how much current political will there is to support his blueprint.
“Politicians were happy to oblige” in earlier decades when crime rates were higher and many citizens demanded tough penalties, he says. Crime rates have generally declined since the early 1990s, but with “negligible voter interest” in sentencing issues since then, prison populations have remained at all-time highs. He notes that many states have amended sentencing laws in recent years, but only in “minor, marginal” ways.
Writing in the same issue of the journal, Jeremy Travis, president of John Jay College of Criminal Justice, says the campaign to re-think sentencing policies should enlist not only state legislators who “got the country into this mess,” but also prosecutors and judges. Elected district attorneys who represent urban areas with significant minority populations, he writes, could be encouraged to argue that “current incarceration policies are negatively affecting communities of color.”
Travis notes that public opinion may have to change markedly for mass incarceration in the U.S. to end. As things stand, the fact that crime rates are down while prisons are bulging “leads John and Jane Q. Public to conclude this incarceration policy has been a smashing success.”
In fact, a National Research Council study headed by Travis concluded last year that the impact of high incarceration rates on crime is uncertain but likely small, he notes.
The public must be sold on the idea that “significant reductions in prison populations are possible without significant increases in crime rates,” Travis says, adding that what is needed now is a “long-game campaign … that mobilizes the public and opinion leaders to demand different policies.”
His formula, in brief, is to mobilize “unlikely allies” that include prosecutors, judges, unions, and crime-victim advocates to provide “running room for the brave legislators and governors” who would take the steps necessary to cut incarceration totals sharply.
Also writing in the journal on various sentencing and incarceration topics are Daniel S. Nagin of Carnegie Mellon University; Cassia Spohn of Arizona State University; Anthony N. Doob of the University of Toronto; Cheryl Marie Webster of the University of Ottawa; Gerard E, Lynch of Columbia Law School; and Steven Raphael of the University of California Berkeley.
The journal has been sent to all members of the American Society of Criminology, which publishes it. Others can purchase it from John Wiley & Sons, Inc., at this website. Journalists who want access for news stories should message Ted Gest of Criminal Justice Journalists at email@example.com.
Ted Gest is president of Criminal Justice Journalists and Washingtion Bureau Chief of The Crime Report.He welcomes comments from readers.