Crime and Punishment
Tempering Expectations on Prison Reform

Prison reformers have won major victories over the last several years, successfully persuading legislatures or voters (in red and blue states alike) to soften penalties for some nonviolent offenses, especially drug crimes. And last year, a bipartisan group of Senators introduced legislation giving judges more discretion in sentencing in certain cases. But even if these reforms retain political support, and even if they spread to other states, they won’t be enough to reverse the phenomenon we now call “mass incarceration,” according to research recently published in The Annals of the American Academy of Political and Social Science. Kate Wheeling summarizes some of the findings for the Pacific Standard:

If you look closely at recent progressive reforms—and at the media’s framing of those reforms—as the researchers did here, you’ll notice that the policy changes afoot have not been comprehensive. Their analysis revealed that progressive sentencing reforms have mostly been limited to non-violent and drug offenses. When it comes to violent or repeat offenders, policymakers calling for reform tended to endorse the current policies or call for even more punitive measures. But research suggests that, to truly make a dent in the tremendous prison population in the United States, broad sentencing reforms—for all types of offenses—will be necessary.

One of the great misconceptions of the criminal justice reform movement is that mass incarceration is first and foremost a consequence of the war on drugs. The American prison population has gone up sevenfold since the 1970s, and drug offenders make up less than a fifth of people currently behind bars. The origins of America’s prison boom lie in the devastating violent crime wave that started in the 1960s and only began to abate in the mid-1990s. Prison reformers could try to build on their momentum by arguing for reductions in sentences for violent offenders (this isn’t always so unreasonable: After all, why should a con artist who defrauded the elderly be a candidate for sentencing reductions rather than someone who punches someone in a bar fight?), but that is likely to be politically toxic, and understandably so.

A more promising avenue for reform involves changing the ways prosecutors exercise their discretion. Since the peak of the crime wave, prosecutors (for both political and institutional reasons) have grown more aggressive about throwing the book at defendants, and sometimes using overwhelming leverage to extract coercive plea bargains. This phenomenon has had a bigger effect on the rise of the prison population than many reformers seem to understand, and tweaking sentencing guidelines—even for violent offenses—won’t do much about it. Prison reformers sometimes get ahead of themselves, but they are probably right that there is at least some room for states carefully to cut their prison populations without seriously increasing crime rates. The best way to go about that would be to reform the plea bargaining system, and to change the incentives and culture in district attorneys’ offices.

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