Excerpted From: Mirko Bagaric, Jennifer Svilar and Brienna Bagaric, Continuing Principled Sentencing Reform and Winding Back Mass Incarceration Against the Backdrop of America's Surge in Violent Crime, 23 Nevada Law Journal 411 (Spring, 2023) (400 Footnotes) (Full Document)


BagaricSvilarBagaricThe criminal justice system is in a state of change--more so than at any point over the past half century. The tough on crime policy, which has dominated United States criminal justice policy for the past fifty years and has resulted in the United States becoming the world's largest incarcerator, has finally been exposed as a failed experiment. As a result of the police murder of George Floyd, the mood for reform has been accelerated due to an increased intolerance for any form of institutional racism. It is simply quite no longer an option to maintain a system that imprisons African Americans at approximately four times the rate of White Americans.

The key reason for the dramatic failure of criminal justice policy is that it was grounded on political opportunism and sloganism as opposed to being informed by evidence. Strikingly, the criminal justice system is one of the few societal institutions that has remained impervious to empirical learning and scientific and technological developments over the past fifty years. While disciplines such as medicine, engineering, communications, and marketing have changed dramatically during this time, the criminal justice process has largely remained in a technology and science-free time warp. In particular, the principal method of punishment (locking up offenders behind concrete walls) has remained unchanged.

Political imperatives have proven to be an insurmountable obstacle to the adoption of evidence-based developments in the criminal justice system. This is no longer the case. Never has the criminal justice climate been more ready for reform. This is highlighted by the receptiveness of many parts of the community to seemingly radical reform proposals, such as abolishing prisons and defunding police departments. While it is clear that the criminal justice system must change, there is no clarity or consensus regarding how it should change.

The criminal justice system has numerous phases, including investigation, arrest, trial, and conviction or acquittal, and then the imposition of sanctions against offenders. This last stage, sentencing, is arguably the most important aspect of the criminal justice system: The sanctions available against offenders target the most cherished and coveted individual interests, such as the right to liberty and, in extreme cases, the right to life. Moreover, mistakes at the sentencing stage of the process threaten to undermine the integrity of the entire criminal justice system. If, for example, murderers habitually received only small fines or shoplifters were sentenced to life imprisonment, this would seriously undermine the efficacy of the entire criminal justice process. This Article sets out the evidence-based changes that should be made to the sentencing system.

While there is considerable momentum and apparent receptivity for criminal justice reform, proposals need to be pragmatically orientated, otherwise they will be rejected for being too ambitious and unworkable. Or worse still, over-ambitious reforms could be implemented that will have a net negative impact on society. Thus, in reforming the sentencing system, it is important to balance pragmatism and theoretical purity. The key consideration in balancing these issues is not to lose sight of the main objective of sentencing (and indeed the criminal justice system), which is to protect the community against crime. Thus, it is cardinal that any proposed reforms do not undermine the community's sense of safety. It would be pragmatically untenable to advocate for reforms that will significantly reduce prison numbers in a climate in which the crime rate is increasing. This is an especially important observation given that in 2020, 2021, and the start of 2022 there has been a significant rise in the violent crime and homicide rate in the United States.

As has been noted recently:

Four years ago, progressive prosecutors were in the sweet spot of Democratic politics. Aligned with the growing Black Lives Matter movement but pragmatic enough to draw establishment support, they racked up wins in cities across the country.

Today, a political backlash is brewing. With violent crime rates rising in some cities and elections looming, their attempts to roll back the tough-on-crime policies of the 1990s are increasingly under attack--from familiar critics on the right, but also from onetime allies within the Democratic Party.

The other key pillar of the reforms involves identifying a coherent alternative to the tough on crime approach. Intellectually this is a complex task. While most jurists agree that America has punished offenders too heavily in recent decades, there is no accepted methodology that can be invoked to guide the development of appropriate penalties for criminal offenses. To this end, the only plausible theoretical construct is the principle of proportionality, which prescribes that the harshness of the punishment should match the seriousness of the crime. This principle is vague; arguably meaningless. However, in this Article, we suggest a methodology for giving it workable content. A key practical implication from this involves decriminalizing drug offenses.

In Part I of this Article, we will provide an overview of the current sentencing system and incarceration numbers and trends in the United States. This will be followed by an explanation of the current breadth and depth of the momentum for reform in Part II. In Part III, we will set out the nonnegotiable elements of any reform proposals. These include the need to ensure that changes do not result in an increase in violent crime, and they must eliminate, or at least substantially reduce, racial discrimination in the sentencing system. Reform proposals will be set out in Part IV of the Article and will include the need to: implement proportionate sanctions, decriminalize drug use, replace prison for nonviolent and nonsexual offenses with monitoring sanctions, and introduce societal reforms that address the root cause of crime. The key reforms will be summarized in the concluding remarks.

[. . .]

There is considerable impetus for reform of the criminal justice system. Fifty years of being tough on crime, with the disproportionate burden of criminal law falling on the most socially disadvantaged Americans, has been a massive policy failure. The failure has been so pronounced that despite the intuitive impulse to punish criminals, the weight of community and political sentiment now supports fundamental criminal justice reform. The need to make extensive reforms to the criminal justice system has been highlighted by the BLM movement. This Article has focused on the reforms that should occur to the sentencing stage of the criminal justice process. In proposing the reforms, a key guiding principle has been the need to achieve a balance between theoretical purity and what is pragmatically achievable. The last consideration is especially important in light of the current increase in violent crime across much of the United States.

There are five key reforms that need to be made to the sentencing system. The first is to take the principle of proportionality seriously. This requires a clear understanding of the extent to which respective criminal offenses harm people and this then needs to be calibrated to the harshness of the criminal sanctions. The second major reform requires the decriminalization of drug use, and for this to be treated as a health, not criminal justice, issue. Third, we need to get better at identifying which offenders are likely to reoffend. This can only be achieved by using predictive algorithms to inform this aspect of the sentencing determinations. The fourth key recommendation is to make greater use of technological advances to develop a new criminal sanction that monitors the movements and activities of offenders while at home in the community. This would serve as a substitute for most prison terms that are currently imposed. Finally, attention needs to be focused on ameliorating the long-term causes of crime. To this end, educational outcomes of the most economically and socially disadvantaged Americans need to be improved. If reforms of this nature are not implemented in the short-term future, it is likely that the current groundswell of support for criminal justice change will subside, thereby entrenching America's unenviable reputation as the world's largest and most gratuitous incarcerator.

Dean of Law, Swinburne Law School, Melbourne

Professor, J.D., University of Tennessee College of Law

Lecturer, Deakin University Law School, Melbourne