« Updated accounting of America's aging prison population | Main | "Legal Innocence and Federal Habeas" »

May 17, 2018

"How should we deal with wrongdoing? And you can’t say ‘prison.’"

The title of this post is the headline of this notable new Washington Post commentary authored by Danielle Allen. I recommend the full piece, and here are excerpts:

How should a kid like Michael [involved in multiple armed robberies at age 15] be sentenced? How, more generally, should we respond to wrongdoing? Here’s my challenge to you: In my thought experiment, you can’t answer “prison.”

Given that constraint, what punishment should Michael receive? Here are our goals: We want to respond to wrongdoing so as to ensure that victims are made whole, that society is made whole, and that the wrongdoer, too, becomes whole and, having paid recompense, is prepared to contribute productively to society.

Does your mind draw a blank? If so, you are like most of us, accustomed to a system that thinks incarceration is the only way to respond to wrongdoing.

In the United States, 70 percent of our criminal sanctions consist of incarceration.  That’s why it’s all we can think of. But a world that operates without an extensive reliance on prison is not a utopia; it is only a plane ride away.  In Germany, incarceration is used for 6 percent of sanctions; in the Netherlands, it’s 10 percent, according to a 2013 Vera Institute report comparing our criminal-justice system with theirs.

Germany and the Netherlands rely predominantly on fines, linked to the offender’s ability to pay, and “transactions” or community sanctions — for instance, work orders that benefit the community, or training orders, or a combination. Halfway houses connect residential oversight with supervised work opportunities, which can be connected to paying restitution to victims and the community.  The penal systems are built around the principles of rehabilitation, re-socialization and “association.”  This is the idea that a criminal sanction is more likely to result in a wrongdoer’s successful reentry to society if it works to strengthen, not damage, the wrongdoer’s positive connections to family and community....

Currently, two criminal-justice-reform strategies are moving through Congress. Last fall, Sens. Charles E. Grassley (R-Iowa) and Richard J. Durbin (D-Ill.) introduced the Sentencing Reform and Corrections Act.  The act tackles the problem of mandatory minimums and seeks to “improve fairness in sentencing of low-level, nonviolent offenders,” so as to permit law enforcement to focus on “violent offenders, major drug traffickers and criminal masterminds.” This month, Sens. John Cornyn (R-Tex.) and Sheldon Whitehouse (D-R.I.), alongside Reps. Douglas A. Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), introduced a prison reform bill called the First Step Act.  This bill would offer individualized recidivism-reduction plans to all people incarcerated in federal prisons, and increase access to vocational training and educational support, as well as substance-abuse and mental-health resources. The bill would also introduce halfway houses or home confinement for the final phase of incarceration.

These bills have wrongly been cast as competitors.  If we are to undo mass incarceration, we have to envision viable alternatives to incarceration.  By making halfway houses and rehabilitative strategies central to our sanctioning system, the First Step Act would help the American public see new possibilities.  It could thereby lay the foundation for true transformation of sentencing.

Policymakers too often forget that three-quarters of their work should be winning the hearts and minds of the public.  To win sustainable, unwavering, widespread support for meaningful sentencing reform, we have to show that strategies of rehabilitation and restorative justice work.  Lawmakers should embrace the First Step Act as a necessary part of painting that new picture.  The Sentencing Reform and Corrections Act would benefit from our collective ability to imagine alternatives to incarceration.  

May 17, 2018 at 11:19 AM | Permalink


Incarceration was itself reform. I suggest the 3 B's. Two beatings and a bullet. Stop the stupid, and ineffective rent seeking games of government make work scam artists.

Posted by: David Behar | May 17, 2018 11:43:14 AM

Future dwellers of Earth will likely find our penal policies uncivilized.

Posted by: Joe | May 17, 2018 12:47:18 PM

Joe. Calm down. I do not know how old you are. If you are 40, you will live to see CRISPR/cas 9 technology remove the genetic predisposition to crime and addiction in all the cells of the body, including reproductive systems. An mRNA molecule guides a virus to the gene. The virus snips it out, and inserts the correct gene. That means, the offspring will not carry those tendencies.

A congenital syndrome that had not been seen before was recently genetically characterized in 24 hours. Criminality is likely complicated, but the genetic predisposition should be found, even if it involves 100's of genes, and then treated.

The DOJ should be pouring $millions into this effort. If it does not, the Chinese are sprinting into this technology. We can just copy them, or buy their kits for $100 each.

Posted by: David Behar | May 17, 2018 1:03:47 PM

The distribution of the correctional population according to BJS is 70% community supervision and 30% combined jail, state and federal prisons.

Posted by: John Neff | May 17, 2018 1:06:52 PM

How many times does this question have to be asked of the same perpetrator over the course of his lifetime?

Realistic question.

Posted by: Eric Knight | May 17, 2018 1:59:59 PM


Incarceration resulting from exasperation is a common outcome. Mandatory minimum sentences for habitual offenders is an example.

Posted by: John Neff | May 17, 2018 2:39:22 PM

Against Imprisonment - David Scott
Very much against the current political obsession with increasing incarceration this book is a wake-up call for all those who feel the use of imprisonment is failing to achieve a reduction in crime.

Posted by: peter | May 17, 2018 3:12:34 PM

"Two beatings and a bullet" Only a fscist idiot …

Posted by: Claudio Giusti | May 17, 2018 3:34:31 PM

Claudio. That is all the victims get. Why should criminals get the luxury treatment?

Posted by: David Behar | May 17, 2018 3:58:38 PM

"Incarceration was itself reform"

David is correct, a point our modern reformers often overlook. I recently read a detailed history of the American Revolutionary War. At one point in time Washington's army only amounted to about 800 men because everyone kept deserting. How did the father of our country respond to this desertion crisis? He hung deserters, in scores. Now, to be fair to Washington he also pardoned a great many too...carrot and stick... but David's point is valid.

"Here are our goals: We want to respond to wrongdoing so as to ensure that victims are made whole, that society is made whole, and that the wrongdoer, too, becomes whole and, having paid recompense, is prepared to contribute productively to society."

Is that really the goal? I doubt that many people would agree that it is.

Posted by: Daniel | May 17, 2018 4:08:40 PM


I would say it's a fine goal but also at some point society needs to cut losses, and that any mistakes should come out with the offender on the disfavored side.

Posted by: Soronel Haetir | May 17, 2018 4:22:31 PM

Daniel and SH. That is retributive talk. As a taxpayer, I do not want it. I want a low crime rate. Do whatever it takes.

Posted by: David Behar | May 17, 2018 4:49:34 PM

Each of the American Colonies had their own set of criminal laws and the penalties were very harsh but not as harsh as those in England. After the revolution all of the states revised their criminal codes and the number of capital crimes was reduced to treason and premeditated murder. The also eliminated many of the corporal punishments.

The reformers thought that the criminals could be reformed by incarceration. The prison wardens were the ones that found out that some were reformed and others were not. At the present time we have emphasized incapacitation and retribution and as consequence the reform rate is rather low. We have setup a very large number of barriers to reentry to society and have damaged ourselves in the process.

Posted by: John Neff | May 17, 2018 5:19:29 PM

DB is a dangerous idiot. Is it possible to have him silenced ???

Posted by: Claudio Giusti | May 18, 2018 10:34:42 AM

My answer to that depends on another question -- what IS allowed?

I would definitely suggest putting him to work fighting forest fires during what would otherwise have been his Summer vacation. Let half his pay be divided among his victims until they are whole, and let his pay depend on his performance. That will give him a reason to work hard -- the sooner everyone is paid back, the sooner he can be free of that sanction.

He should not be allowed to have a driver's license until he has repaid his victims.

During the school year, he should wear an ankle bracelet, and the only allowed places are school, home, and necessary appointments of whatever nature, with a clear list of what is allowed. It needs to be clear that if he breaks those rules, it's off to prison.

Termination of the sanctions should depend on doing well in school, paying the victims back, and staying out of trouble.

Some other things need to be off limits, starting with weapons and association with any co-defendants. And again, if he breaks those rules, it should be possible to send him to prison.

I would suggest taking a look at whether or not his parents ought to be punished, with particular attention paid to the question of whether or not they were trying to keep him in line.

Now, if you want to add more conditions, such as saying he is too young to work, well, he was old enough to commit armed robberies, wasn't he?

If you don't want to allow prison as a "backup" punishment for breaking the rules, then there has to be a backup punishment that IS allowed, and it has to be severe enough that he badly wants to avoid it. Work on an Alaskan fishing boat, maybe? Or in a coal mine? Wintering in the Alaskan outback with a group of other hard cases? Having to carry a 50-pound weight everywhere he goes?

If you are going to forbid all of the backup sanctions too, then I give up, and I assume he will continue to offend, because the punishment "just isn't that bad".

Posted by: William Jockusch | May 21, 2018 11:47:00 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB