"Purpose-Focused Sentencing: How Reforming Punishment Can Transform Policing"

The title of this post is the title of this essay authored by Jelani Jefferson Exum recently posted on SSRN. Here is the abstract:

Today’s discussions about police reform have focused on changing police training and procedures.  As accounts of deaths of African-Americans at the hands of police officers have played out in the news and social media, demands for racial justice in policing have become more prevalent.  To end what I have coined as “the Death Penalty on the Street,” there have been calls for diversity training, training on non-lethal force, and, of course, community policing.  While it is perfectly rational for the response to excessive police force to be a focus on changing policing methods, such reforms will only have limited success as long as attitudes about black criminality remain the same.  Though we would like to hold them to a higher standard, police officers are merely human, so they carry with them the same biases and prejudices that any of us can hold.  Studies have shown that, in general, Americans are -- regardless of our race -- biased against blacks, especially young black men.  African Americans are more likely seen as criminals, and most of us overestimate the amount of crime attributable to the black population.  Therefore, in order to truly address the problem of racial injustice in policing, we must address the racial biases held by our society that play out in our criminal justice system.  Though perhaps not the obvious place for this revolution to start, sentencing reform has the potential to change the face of the punishment in our country, thus transforming the (usually black) face of whom we see as deserving of punishment by the police and the courts.

This Essay proposes “purpose-focused sentencing” as a means of remedying the over-incarceration of blacks, thereby combatting attitudes about crime and black criminality, and in turn, affecting how police see and treat blacks.  The goal is to reduce the racial disparity in incarceration, not solely through an overall lessened reliance on prisons and jails, but also by assessing and identifying appropriate sentences to fulfill criminal justice purposes.  Once those purposes -- deterrence, rehabilitation, incapacitation, and retribution -- are identified and assessed, there will not be room to justify disparities in sentencing attributable only to the race of the defendant.  All sentences, regardless of the peculiarities of an individual defendant, must be tailored to a specific result, rather than imposed at the whim of a particular judge or in accordance with legislation that has no basis in an identified sentencing goal.  As a result, we will see prisons and jails being used much more exclusively (to the extent that incarceration is used at all) for violent, repeat felons, which statistics tell us are not where our racial disparities lie today.  When punishment is more closely aligned with what the offender has done, and what our goals of punishments are given that behavior, we can begin to combat the stereotype that the dangerous criminal is most likely black.

Once sentencing no longer feeds into the heightened public view of blacks as criminals, the spillover effect will be that the new wave of police officers will not see blacks this way either.  And if they do, society certainly will not view this biased police violence against blacks as reasonable.  This Essay offers a solution that will take years, if not generations, to implement; and it will perhaps take even longer for it to completely transform the face of policing.  However, the proposal is a long-term approach that will immediately begin to move criminal justice in the right direction and encourage honest conversations about what we are trying to do in our system and how our current methods of punishment are only perpetuating racial injustice.