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September 23, 2017

"Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing"

The title of this post is the title of this new paper posted to SSRN authored by Mirko Bagaric, Gabrielle Wolf and William Rininger. Here is the abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  Financially, this is no longer readily sustainable, even for the world’s largest economy.  Further, the human suffering that prison causes is no longer tolerable from the normative perspective.  Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis.  The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment.

In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation.  A more progressive and often effective means of protecting the community is by rehabilitating offenders.  In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise.  Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders.  This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders.  This approach is flawed.  Empirical data establishes that many offenders can be rehabilitated.

In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal.  First, it is necessary to promulgate rehabilitation as a means of protecting the community.  Second, we propose that the role of rehabilitation in sentencing should be expanded.  In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses.  In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria.

To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions.  The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

September 23, 2017 at 01:25 PM | Permalink

Comments

"This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders."

I don't think so. In my view the primary driver of mass incarceration was political, not philosophical. Democrats loved incapacitating people because they received mucho money from the prison guard unions, an especially important source of union support when other unions such as the auto unions were declining. Republicans like incapacitation because all things considered they prefer hard power to soft power--Trump's rhetoric about North Korea being typical of this style. In other words, I don't think the system has been opposed to rehabilitation out of a perception that rehabilitation doesn't work in terms of reducing crime but because rehabilitation doesn't serve anyone's political agenda.

Posted by: Daniel | Sep 23, 2017 1:49:23 PM

I have stated, it is hard to feel less than a 30% change at the gut level. They cite studies of rehab dropping recidivism 8%, in the short term. Dismissed. This article is quite misleading and suborns sentencing quackery.

I have also criticized the practice of having articles by seasoned professionals reviewed by law students. These articles address narrow, in depth subjects. Why not have complicated and dense American poetry submissions judged by students in the second year of studying English in China?

If Prof. Berman can get that practice ended at the Moritz School of Law or at least for the journals to whichhe contributes regularly, that would be a great act of leadership. It would greatly help the profession if it were copied elsewhere.

The 19th Century Harvard Law Dean (again with Harvard Law) who began that practice was a falling down alcoholic, and quite lazy. That is not someone to emulate.

Posted by: David Behar | Sep 23, 2017 8:11:09 PM

Daniel. Reagan's Defense Secretary once said, the defense budget of the US is not set by us, but by the Soviet Union and its challenging conduct. In other words, there is no choice but to respond to the outside threat. He was correct. A side benefit of the rise in the defense budget was the fall of the Soviet Union. Same deal with incarceration.

Your trivialization of the incarceration surge as rent seeking is not true. There was massive criminality in the 1980's, due to the coddling of criminals by a radical left Supreme Court in the 1960's. The public was angry. The law that led to the guidelines mentioned the high crime rate as a target.

In a brilliant remedy, the lawyer profession came up with the mandatory sentencing guidelines to stop the coddling of criminals by pro-criminal judges. Within 5 years, which is immediately in the law, crime dropped 40%. This is the greatest lawyer achievement of the 20th Century, and should be acknowledged. People who minimize the effect of the guidelines are deniers. Deniers do not argue in good faith.

Guidelines and that drop in crime were a likely factor in the boom economy of the 1990's, the return of many failed big cities. They saved tens of thousands of black males who were not murdered. It was the real Black Lives Matter movement.

More evidence that the profession is mired in moronitude. The greatest achievement of the profession is mocked, attacked, and vilified by the profession itself. It should be celebrated, and used to promote public esteem.

Posted by: David Behar | Sep 24, 2017 8:02:15 AM

There is no way to beat the rewards of crime and addiction.

Criminals are not deterred by the 50% risk of being murdered while in that criminal life. Yes, young black males are five times more likely to be murdered, but criminals are 10,000 times more likely.

Criminals have excellent social skills, much better than those of their therapists. They are great manipulators. Violence is a tool among many they posses to get people to do what they want. The therapist can learn from them. Could a therapist get a secretary of a maximum security prison to sneak in tools so 4 murderers could escape? I want to meet that therapist, because she does not exist.

The low average IQ in prison comes from educational deprivation. They have street smarts. They were educationally deprived, because they were losing too much money going to school. Would you attend school if it cost you $1000 a day in lost wages? Could Prof. Berman with his IQ of 1000 survive the Hood longer than a week? Starting at age 10?

Given these realities, rehab is not just quackery. It is a joke, a prank on the taxpayer.

Posted by: David Behar | Sep 24, 2017 8:16:59 AM

The Courts do not want to place "greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety." Revenue is all the District Courts care about, not that a innocent person was accused and sent to prison with no evidence of guilt. Causing more hardship to families contributes to revenue. District Attorney admitted to giving every case a 10 year probation so he can draw them back into the system. Probation should not be required of an inmate that served his unjust time. To further penalize an innocent person, is to take away his/her livelihood and condemn the whole family.

Posted by: LC in Texas | Sep 26, 2017 1:21:24 PM

The Courts do not want to place "greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety." Revenue is all the District Courts care about, not that a innocent person was accused and sent to prison with no evidence of guilt. Causing more hardship to families contributes to revenue. District Attorney admitted to giving every case a 10 year probation so he can draw them back into the system. Probation should not be required of an inmate that served his unjust time. To further penalize an innocent person, is to take away his/her livelihood and condemn the whole family.

Posted by: LC in Texas | Sep 26, 2017 1:21:24 PM

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