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December 13, 2019

"Incapacitating Errors: Sentencing and the Science of Change"

The title of this post is the title of this notable new article authored by Eve Hanan and recently posted to SSRN.  Here is its abstract:

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited.  We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents.  We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies.  Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable.  Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.

Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.

The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude.  Rather, sentencing policy should engage in only modest predictions about future behavior.  The presumption of reintegration as a full member of society should be the norm.  Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm.

December 13, 2019 at 08:28 AM | Permalink


I am going to write this here, because I think it's very important.

I was arrested at age 26 for dealing drugs, and I was. I was caught once selling $20 worth to a friend with a undercover cop with her. It was easy and I made a lot of money. I was caught and sentenced to 6 months. (State Charge obviously) I was very much an adult and very much went through hell even though it was not a lot of time in anyone's eyes, but 6 months to someone, no matter who, is a long period of time to be away from friends and family. I got out finally and straightened my act up, yes, it would have been easier to go back to the "work" I was doing, but the whole experience was terrifying to me and wanted to fly straight. Today, I am a computer engineer, own my own home and business, and have lived a law abiding existence since I left Jail. So people can change. BUT! If I was sentenced under Federal law and received 10 years? Would I have changed? I don't think I would have because, I would have been behind bars for a very long time, not learning anything and by the time I got out, I would feel it's too late to start school and who would give me a chance with 10 years history behind bars?

Another example, my fiance, is serving 16 year sentence with no drugs found, or transactions. Just the statements of someone who got caught with drugs talking and saying how much she saw her with, and then of course, her own statements to receive a downward departure for a lighter (lol) sentence. She has been in prison for over 2 years and has taken drug programs and is ready to get out, get married and start a new law abiding life. She has 10 years to go...what kind of person will she be in 10 years? I will imagine, broken. If it was a State charge she would be just about ready to get out and start a new life on the right track.

These long sentence do so much damage when it comes to non-violent drug charges (most the time because the person is addicted to them and it's a way to afford to keep doing them) destroys families and our economy only to dump them mid-life with nothing and no choices. This has got to change, especially these federal "conspiracy" charges with enhancements that never really apply. They throw them at people like it's going out of style. Anyone who is charged for a drug crime with no drugs found and only on testimony is a travesty and a lazy way to throw as many people in prison as possible with no police effort. It truly cannot be constitutional. Especially on the weight they are charged with. Guesstimating how much and sending them to prison for decades? While a murderer does 7 years, or a child abuser does 6? She is in there with hyannis murderers who have less time then her, how can we let these sentences stand and continue? This has got to change.

Posted by: ELi | Dec 13, 2019 8:14:16 PM

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