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February 25, 2013

"Mass Incarceration at Sentencing"

The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing.  Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform.  Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.

This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing.  Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors.  In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.

Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just.  Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community.  This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

February 25, 2013 at 07:38 PM | Permalink

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Comments

Does this mean that an individual defendant's sentence should be LONGER if the particular jurisdiction has lots of bed space and a budget surplus? Would anyone consider that justice?

Oh, no, wait. I forgot for a moment that the academic ratchet runs only in one direction.

Posted by: Bill Otis | Feb 25, 2013 8:42:30 PM

I don't think you can argue that unelected judges should be above politics and day-to-day policymaking, but then be free to dabble by considering "systemic" mass incarceration and prison overcrowding when making individual sentencing decisions.

Posted by: Thinkaboutit | Feb 25, 2013 10:49:08 PM

Thinkaboutit --

Great point.

Posted by: Bill Otis | Feb 25, 2013 10:52:08 PM

Individual sentencing? I have only experienced that when the proverbial book is being thrown lmao! 2x felon , hey have you ever heard of " sentencing guidelines" ? The basis judges use as a norm for sentencing structures.

Posted by: SadFelon | Feb 26, 2013 1:07:54 AM

Yes, SadFelon, I have heard of the sentencing guidelines. In fact, I was sentenced by a judge who looked at the guidelines and then was free to depart from them, thankfully, as she crafted an individual sentence. I think that system works and I don't see any tension between an advisory guideline system and the ability to sentence each offender as an individual.

Posted by: Thinkaboutit | Feb 26, 2013 9:16:42 AM

Ah, yes, a perfect example of what is REALLY wrong with the justice system, a bunch of judges pretending to be legislators.

You may or may not believe that we incarcerate far too many people in this country but it is not in a judge's job description to make these decisions on policy.

Posted by: TarlsQtr1 | Feb 26, 2013 9:44:12 AM

"Does this mean that an individual defendant's sentence should be LONGER if the particular jurisdiction has lots of bed space and a budget surplus?"

I don't know of any that meet either prerequisite. Why don't we cross that bridge when we come to it (as if)? While a committed statist might suggest longer sentences under such circumstances, the more fiscal conservative (and responsible) among us might suggest closing some prisons to realize even more savings for taxpayers. To each his own, I guess.

Posted by: C60 | Feb 26, 2013 2:30:21 PM

C60 --

You don't take your responsible fiscal conservatism far enough. If we can save money closing prisons, we can save more closing more prisons, and the most closing all of them. Gotta protect that fisc!

While we're at it, we can cut half the budget of DOJ. But, to extend the principle, we'll also cut half the budget for Federal Public Defenders, rehab programs, and job training for convicts. Savings, savings, savings! Are you on board?

Of course, since the recidivism rate is not zero, and is indeed vastly higher than zero, releasing criminals will exact costs on future victims. Do you think those should count as well, or is the amount the government spends -- as opposed to what ordinary people have to spend -- the only thing that counts?

Posted by: Bill Otis | Feb 26, 2013 3:01:08 PM

Bill, that response is as nonsensical as it is non-responsive. It wasn't me that asked, "Does this mean that an individual defendant's sentence should be LONGER if the particular jurisdiction has lots of bed space and a budget surplus?"

Posted by: C60 | Feb 26, 2013 3:09:07 PM

C60 --

"Bill, that response is as nonsensical as it is non-responsive."

Then it should be easy to dispatch with a substantive answer. Should I wait?

If you don't like your logic being taken where it leads, that is not a problem I am able to remedy.

Posted by: Bill Otis | Feb 26, 2013 7:55:31 PM

Bill, you have previously written, "Let me speak for myself. Rather than formulate what you think my attitude toward state killing (or anything else) is, just quote me." I would appreciate the same courtesy, if you are capable of it.

You asked a very simple question with a narrow set of facts (two, to be exact). The idea that any expression of a fiscally conservative principle in a narrow sense requires a submission to eliminating law enforcement in the society at large is the type of informal fallacy I would expect from a fifth grader, not from one who purports to be a former federal prosecutor and a law school professor (which is why I strongly suspect you are just trolling). I said nothing (and your initial question said nothing) about the DOJ, the public defenders office, rehab programs, job training or anything else for that matter. If I am mistaken, apply your own "rule" and quote me.

If you wish to amend or expand upon your original question, I will be happy to expand or reconsider my answer. If you wish to continue your trolling adventures, please look elsewhere.

Posted by: C60 | Feb 26, 2013 9:08:20 PM

C60 --

"Bill, you have previously written, 'Let me speak for myself. Rather than formulate what you think my attitude toward state killing (or anything else) is, just quote me.' I would appreciate the same courtesy..."

You GOT the same courtesy. The very first line in my post is a verbatim quotation of the very first line in yours (Posted by: C60 | Feb 26, 2013 3:09:07 PM), with quotation marks. I did not quote your entire post, which I am not required to do and almost no poster does, including you.

"...if you are capable of it."

I see you're a lot better at condescension than you are at, say, signing your name. Now why would that be?

As to your suggestion that I'm not who I say I am, get lost. Do some research too, if you are capable of it.

"I said nothing (and your initial question said nothing) about the DOJ, the public defenders office, rehab programs, job training or anything else for that matter."

The principle of cutting back on criminal justice spending out of concern for fiscal conservatism extends beyond prison spending, as you amazingly pretend not to know.

Posted by: Bill Otis | Feb 26, 2013 11:11:41 PM

Bill, Please go back to my post at Feb 26, 2013 2:30:21 PM. Did I say anything there that you can quote about DOJ, Federal Public Defenders, rehab programs, and job training for convicts that you can quote? No. Did I say anything there you can quote about releasing criminals early? No.

Please go to your original post at Feb 25, 2013 8:42:30 PM. Did your question posit anything about DOJ, Federal Public Defenders, rehab programs, and job training for convicts? Does it say anything about releasing criminals early? No.

At Feb 26, 2013 11:11:41 PM, You overlooked the substantive answer you were waiting for at Feb 26, 2013 7:55:31 PM. The fiscally conservative answer in response to your limited facts at Feb 25, 2013 8:42:30 PM does not provide a logical or factual foundation for eliminating all prisons, eliminating unrelated DOJ programs that may or may not have merit, or require in response require releasing any criminals. To suggest such engages in an informal logical fallacy. The facts- YOUR facts - do not support your slippery slope progression from A to B to C ... all the way to Z.

To clarify, I am not doubting your credentials at all. I perhaps inartfully, wondered how a person with your credentials makes the unsupported leaps you made at Feb 26, 2013 3:01:08 PM and then not see the fallacy such leaps contain, which explains why I wrote that I "strongly suspect" that you, in fact, do.

My intent at Feb 26, 2013 2:30:21 PM is to address your initial question's substance and nothing more. I will be pleased to discuss or develop those arguments further.

Posted by: C60 | Feb 27, 2013 8:24:06 AM

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