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January 2, 2009

What might 2009 have in store for . . . punishment theory and incarceration rates?

I have combined theory and outcomes in this installment of the 2009 "what's in store" series primarily because new theoretical approaches to punishment and sentencing may be essential to changing modern incarceration rates.  Notably, this recent New York Times editorial, headlined "Sen. Webb’s Call for Prison Reform," documents that at least one prominent newspaper and one prominent politician are eager for action in 2009: 

This country puts too many people behind bars for too long. Most elected officials, afraid of being tarred as soft on crime, ignore these problems.  Sen. Jim Webb, a Democrat of Virginia, is now courageously stepping into the void, calling for a national commission to re-assess criminal justice policy.  Other members of Congress should show the same courage and rally to the cause....

In his two years in the Senate, Mr. Webb has held hearings on the cost of mass incarceration and on the criminal justice system’s response to the problems of illegal drugs. He also has called attention to the challenges of prisoner re-entry and of the need to provide released inmates, who have paid their debts to society, more help getting jobs and resuming productive lives.

Mr. Webb says he intends to introduce legislation to create a national commission to investigate these issues.  With Barack Obama in the White House, and strong Democratic majorities in Congress, the political climate should be more favorable than it has been in years.  And the economic downturn should make both federal and state lawmakers receptive to the idea of reforming a prison system that is as wasteful as it is inhumane.

Usefully, many informed state officials are also speaking up in this arena.  For example, Missouri Supreme Court Judge Michael Wolff and Oregon Chief Justice Paul DeMuniz recently sent this notable letter to the Obama transition team regarding sentencing theories and practices.  Here excerpts from an important letter that should be read in full:

We write to urge major change in state and federal sentencing practices. The United States has become the world leader in incarceration, ironically imprisoning a higher percentage of its citizens than any other country while hoping to regain respect as leader of the free world.  Minorities make up a disproportionately large share of our prison populations.  Minorities also account for a disproportionately large share of the victimizations our archaic sentencing approaches fail to prevent.  Disparity in sentencing extends far beyond cocaine sentences....

Evidence-based practices hold much promise for improving sentencing, but they have failed to influence sentencing culture outside the “treatment” courts.... State and federal sentencing guidelines were designed to reduce disparities, to provide some measure of “truth in sentencing,” and to slow prison growth.  But guidelines have failed to end disparity or prison growth.  Though they may achieve “truth in sentencing” by bringing time actually served within reach of the sentence imposed, they utterly conceal the truth that federal and most state guidelines have nothing whatever to do with public safety, and result in misallocation of prison resources as measured by public safety outcomes.  The failure of guidelines to serve public safety has fueled pressure for more prisons.

Notable signs of hope include efforts in Missouri, Wisconsin, Oregon and Virginia to infuse risk and need assessment into sentencing. Virginia, by legislative directive, used risk assessment to reduce inflow into its prison population by 25% with no increase in crime. Meaningful change requires that we insist upon data-driven sentencing throughout the spectrum of criminal behavior. We must use programs that demonstrably work on those they work on – without prison if the risk level permits, otherwise in custody and during reintegration and post-prison supervision.

Because crime was not a hot-button political issue in 2008 and because few states can now afford to sustain modern increases in incarceration rates, I am very hopeful that 2009 will be a turning-point year in this arena.  But I am also fearful that an array of political and practical forces will preserve many of the most troubling status-quo structures and processes that has helped make a nation conceived in liberty so reliant on locking so many people in cages.

Some related posts: 

January 2, 2009 at 09:08 AM | Permalink


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RE: "fearful that an array of political and practical forces will preserve many of the most troubling status-quo structures and processes that has [sic] helped make a nation conceived in liberty so reliant on locking so many people in cages"

For example, politicized calls in the blogosphere for jacking up DWI penalties with no evidence or reason to believe lengthy incarceration reduces addiction-related crime.

Posted by: Gritsforbreakfast | Jan 2, 2009 11:04:05 AM

Grits, though I know you do not like my calls for getting tougher on DWI, on what basis do you describe my calls for greater toughness "politicized"? I am neither a politician, nor do I aspire to run for office. Moreover, there is lots of evidence that getting tougher on DWI over the last 30 years HAS significantly helped to reduce alcohol-related highway deaths.

I urge you, Grits, to be A LOT more focused here and to not lump my concerns about DWI harms with other addiction-related crime. Alcoholism is a disease for many, but nobody is going to go to jail for that. And most folks are given a second (and a third and fourth and fifth) chance if/when they get behind the wheel when under the influence. But unless and until we have reduced through some means all the death and destruction caused by DWI every year, I think tougher sentences for REPEAT drunk drivers should be among the means we use to try to save innocent lives.

Posted by: Douglas A. Berman | Jan 2, 2009 12:19:12 PM

A critical part of the message of this letter to the Obama Transition Team is worthy of note:
"We must stop giving those who invoke “just punishment” a free pass. Just as we must hold crime-reduction sentencing strategies to outcome measurement, we must require rational demonstration that some purpose other than crime reduction justifies any departure from public safety as an objective. Public trust and confidence can never be maintained if we do not effectively pursue reduced recidivism. Most sentences that best seek crime reduction also serve any other legitimate purposes. Exceptions include some drunk driving homicides, shaken baby cases, and intrafamilial sex abuse cases."

Posted by: Michael Marcus | Jan 2, 2009 12:25:00 PM


I am aware of evidence based studies that indicate that increased enforcement of DUI laws results in an reduction in the incidence of DUI arrests. In such studies all other factors are fixed and the level of enforcement is the only variable. When you do a study of the influence of the harshness of the penalty how do you design an experiment so that is the only variable? I don't think it is possible and as a consequence I am vary dubious about claims that increasing the penalty makes a difference.

Posted by: John Neff | Jan 2, 2009 7:17:55 PM

There are people in Texas serving life sentences for DWI (obviously they had more than one). Recognize that DWI prohibits only the operation of a motor vehicle in a public place while intoxicated. There is no injury (that would be charged as intoxication assault) or death (would be charged as intoxication manslaughter). This is a crime with no criminal intent--Texas law specifically relieves the state from proving any mens rea whatsoever. In effect, persons are receiving life sentences for a crime whose evidence is subjective in nature; the testimony of a police officer is enough to support a conviction. From the voodoo of the Field Sobriety "Tests" to the inherent biases of the state's witness (officers are promoted, awarded, and recognized for DWI arrests and convictions) and on to the breath test machine for which the manufacturer will not release the operating software (Intoxylizer 5000), DWI is a strict liability offense whose trial and proof are like no other. To advocate for "lengthier" sentences or to posit that life sentences for such offenses are fair, acceptable or in the public interest is to stand the concept of ordered liberty on its head. Moreover, the ostensible rationale for shockingly severe DWI sentences--the "carnage on our highways"--provides little support. First, the connection between DWI and traffic accidents is not direct. When one considers the massive level of persons driving while legally intoxicated each night, the connections between DWI and traffic accidents can more fairly be characterized as remote. Secondly, most are able to recognize that the federally-mandated BAC of .08 is ridiculous, and has little connection to public safety, and can be more fairly characterized as agenda-driven social engineering or neo-prohibitionist in nature.
Finally, were draconian prison sentences for repeat DWI offenders really effective in reducing intoxication-caused traffic accidents, the Texas model should by objective statistical evidence. It most surely does not. According the NHTSA data, Texas has the fourt-highest per-capita incidence of "alcohol-related fatalities." http://www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.6a6eaf83cf719ad24ec86e10dba046a0/
The statistics show that the draconian sentencing regime does not work. So tell me again, why do we want to lock up more people for even longer?

Posted by: | Jan 4, 2009 4:00:47 PM


Posted by: MARIA | Jan 7, 2009 12:04:49 PM

Doug, I apologize for forgetting to check back on this string to respond to you.

As for my alleged lack of "focus," perhaps you'd do well to step back from your close inspection of the tree and take a look at the forest, particularly if you think DWI will be solved by enforcement instead of treating alcohol addiction.

You say there's lots of evidence super-tough penalties work, but quoting MADD isn't the same as analyzing evidence and actual real-world outcomes contradict your claims.

E.g., Texas has much harsher penalties than California for DWI and we frequently see life sentences for repeat DWI - you can't get much harsher than that short of a death sentence (which you've also called for in the past - is part of why I view your approach as "politicized"). Yet Texas has MORE DWI deaths than California, even though we only have 60% of their population.

Until you can explain those data, your emphasis on boosting punishments seems decidedly misplaced. Where your suggestions are being followed, the outcomes are
WORSE, not better.

Posted by: Gritsforbreakfast | Jan 14, 2009 9:54:13 AM

I would have thought a commission to study something, anything, and make recommendations would have passed easily, who in DC would oppose that? You get to hand out some money, let friends travel around the country staying at nice hotels and eating nice food while making all the right noises.

It's not like you actually, you know, have to pay any attention to what such a commission actually says in the end.

Posted by: Soronel Haetir | Jul 13, 2009 10:19:21 AM

who in DC would oppose that? You get to hand out some money, let friends travel around the country staying at nice hotels and eating nice food while making all the right noises.

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