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June 28, 2012

What is the real national sentencing "mood" in our new era of budget-cut reforms?

The question in the title of this post is prompted in part by what seems to be a somewhat muted political reaction to the Supreme Court's Eighth Amendment decision in Miller, and in part by this effective new article at The Crime Report.  The piece is headlined "Rethinking ‘Tough on Crime’," and it has a particular focus on this November's ballot initiative in California to reform that state's broad three-strikes law.  Here are excerpts:

[S]everal thousand prisoners ... could be eligible to petition for early release if California voters this November pass a proposed initiative to reform the state’s three-strikes law, the toughest in the country.  The proposed law would reserve 25-to-life sentences mostly to those who commit serious or violent crimes on their third offense.  It would also allow some current inmates, who committed a third strike that was not violent or serious, to petition for early release.

California is not alone.  States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes.  Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).  At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

The U.S. Sentencing Commission in October 2011 also recommended changes to federal mandatory minimum sentencing laws, saying that some penalties “apply too broadly, are set too high,” and are applied inconsistently across the country.

“Compared to the ‘80s and ‘90s when the push was to adopt more mandatory sentencing policies, the tide is beginning to move in the other direction,” said Marc Mauer, the director of The Sentencing Project.  “We’re seeing a better climate for sentencing and corrections reform.”

The changes are part of a broader rethinking of many of the “tough on crime” sentencing policies that dominated the country for decades.  Driven largely by the flagging economy, states have embraced a variety of reforms to rein in the cost of high prison populations, including diverting low-level drug offenders into treatment; reforming the parole system; and granting early release to certain inmates....

Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole.  Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.

Rather than a wholesale rejection of long prison terms, though, many of the mandatory minimum and repeat offender sentencing changes are refining laws to reserve the harshest punishment for violent or repeat criminals....

Not every state is moving towards sentencing reform.  In Florida, which has a three-strikes law and a mandatory sentencing scheme for gun crimes, Gov. Rick Scott earlier this year vetoed a bill that would have diverted some nonviolent drug offenders into treatment.  The legislature in Massachusetts is also considering enacting a new three-strikes law.

And, other than reevaluating mandatory sentences for drug crimes, most states still favor long prison terms, said Barry Krisberg, Director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law. “No one wants to fundamentally change sentencing laws, so we’re not,” he said. “We’re just working around them.”

June 28, 2012 at 08:59 AM | Permalink

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"The question in the title of this post is prompted in part by what seems to be a somewhat muted political reaction to the Supreme Court's Eighth Amendment decision in Miller..."

The reason the reaction is muted is that the decision doesn't do much. That we can't have MANDATORY JLWOP hardly means that we can't have JLWOP. As I have pointed out before, many of those to be resentenced will get JLWOP again, and those who don't are in for quite long sentences anyway. The practical consequences are too small to spark anything more than a muted political response.

Posted by: Bill Otis | Jun 28, 2012 5:35:45 PM

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