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Excerpted From: Mirko Bagaric, Nick Fischer and Gabrielle Wolf, Bringing Sentencing into the 21st Century: Closing the Gap Between Practice and Knowledge by Introducing Expertise into Sentencing Law, 45 Hofstra Law Review 785 (Spring, 2017) (420 Footnotes) (Full Document)

BagaricFisherWolfSentencing law is the area of law where the state acts in its most coercive and authoritative manner against its citizens. It is fundamentally broken. There is no tenable rationale that can justify the shocking reality that there are currently more than two million Americans in prisons and local jails. The rate of incarceration in the United States is the highest on earth and by a considerable margin, even when compared to other developed countries, most of which imprison their citizens at more than four times the world average. It is apparent from a consideration of imprisonment and severity-weighted crime rates that between 1983 and 2013 the United States became 165% more punitive.

The most pressing and important issue relating to sentencing law and practice is its continued disregard of expert knowledge and empirical evidence. Sentencing is the area of law where there is the greatest gap between practice and what knowledge tells us can be achieved. All other social institutions and areas of learning, such as medicine, engineering, and education, readily embrace and change their practices in response to new learning that demonstrates more efficient and effective ways of achieving desirable outcomes. In sentencing, however, the dominant practices and reforms made in the last four decades, which are responsible for the mass incarceration crisis, have been implemented despite voluminous, largely academic, literature exposing their problems. Empirical evidence highlights that key sentencing objectives that have been invoked to justify heavier penalties, such as marginal general deterrence and specific deterrence, are flawed, yet they remain central goals of American sentencing systems.

In this Article, we examine the reasons for the gulf between sentencing knowledge and practice, and make recommendations regarding the measures that need to be undertaken to bridge that gap, so that lawmakers bring sentencing practice in line with current knowledge in this area and make it fairer and more efficient. This is a greatly under-researched area of law and policy, and, if our proposals are adopted, the incarceration rate will be substantially reduced, far less taxpayer dollars will be spent on prisons, and the community is likely to be safer.

We argue that a key reason for the mass incarceration crisis and, ultimately, the separation between sentencing knowledge and practice, is the historical preference in the United States for retributive justice. While criminologists have attributed this emphasis to the so-called “tough on crime” rhetoric and policies that dominated criminal justice policy in the 1960s, “tough on crime” policies are deeply rooted in political, social, and economic traditions that were entrenched in American society well before the 1960s and, in some cases, even the 1860s. The diverse sources of these attitudes are explored in greater detail in Part VI of this Article. We maintain that, despite this longstanding attraction to retributive justice and criminals' lack of political capital, attitudes can change and it is possible for sentencing practice to be reformed in response to expert knowledge.

Indeed, particularly in the past two years, concern about mass incarceration in the United States has been growing and there has been wide-ranging public discussion about the need for solutions. The issue has moved from academic inquiry to mainstream attention. Indeed, in July 2015, Barack Obama became the first sitting U.S. President to visit a U.S. prison when he visited a medium-security prison in central Oklahoma. Following the visit, “[t]he president called for lowering--if not ending--mandatory minimum sentences for non-violent drug offenses, restoring the voting rights of ex-felons, revisiting hiring practices that require applicants to list criminal activity, and expanding job training programs so inmates are better prepared to reintegrate into society.” Former President Obama also mentioned the need for sentencing reform in his 2015 State of the Union address.

In 2016, 30,000 people, including police officials, attorneys, and prosecutors, signed a public letter to Democratic Party presidential nominee Hillary Clinton and (now) President Donald J. Trump urging a fundamental re-think of sentencing law with a view to reducing incarceration numbers. The letter states as follows:

We want dangerous offenders off our streets, and behind bars. We want to make sure the people in the communities we serve are protected .... However, we also know that our burgeoning prison population is creating a new public safety challenge ... over-relying on incarceration does not deter crime. As prison budgets have continued to rise, funding for state and local law enforcement has been slashed, negatively impacting innovative work in the field including diversion programs ... and smart policing tactics. With finite prison space, we believe prison should be used for the most dangerous offenders ....

[We urge you to] support policy changes that appropriately address the burgeoning prison population through thoughtful and sensible measures that protect public safety. These include modifications to sentencing laws that carefully filter out the truly dangerous individuals who belong in prison and out of our communities, while allowing lower level offenders a chance for redemption through alternative punishments that are proven to reduce recidivism and rehabilitate. Such measures allow law enforcement to more effectively protect and serve our country.

The current focus on problems with the sentencing system provides a window in which the community and lawmakers may be receptive to evidence-based reforms to sentencing. To take advantage of this opportunity, it is necessary to research systematically and understand the existing barriers to implementing progressive reforms to the sentencing system. In so doing, this Article will help surmount these obstacles and fill an important gap in the literature relating to sentencing reform.

In the next Part of this Article, we provide an overview of American sentencing law and practice. This is followed in Part III by an examination of key failings of the sentencing system. Part IV demonstrates the existence of the gap between sentencing practice and knowledge. In this Part, we provide an overview of the current state of learning about objectives that can be achieved through a state-based system of punishment. We demonstrate that the two primary sentencing goals, which have resulted in increased prison numbers, are flawed. Empirical data shows that the theory of (marginal) general deterrence is unsound, as harsher penalties do not deter individuals from committing crimes. Incapacitation (as a means of community protection) is also a misguided ideal for several reasons, including because there are no accurate methods for predicting which serious offenders are likely to reoffend. Specific deterrence, which is another, though less invoked, sentencing objective, is also misconceived. It is founded on the theory that harsh penalties will dissuade individual offenders from reoffending to avoid again being subjected to criminal punishment, but harsh penalties probably have the opposite effect and increase recidivism. In this Part, we suggest that an evidence-based sentencing system would almost halve prison numbers. This outcome would be achieved by adopting a bifurcated system whereby prison sentences are reserved mainly for serious violent and sexual offenders, while more lenient sanctions are imposed on other offenders (such as those who commit fraud, property, immigration, and drug offenses). The fact that lawmakers continue to pursue demonstrably unattainable objectives indicates their unwillingness to allow sentencing policy decisions to be guided by experts in the field, but also scholars' and jurists' failure to promulgate their learning in an effective manner that shapes critical social and legal policy.

Part V highlights the current mainstream focus on sentencing law and appetite for fundamental reform of this area. It provides some basis for confidence that lawmakers may finally be receptive to evidence-based suggestions regarding the development of sentencing law.

In Part VI, we discuss the reasons for the mass incarceration crisis, which have led to the resistance of sentencing law and practice to expert-based reforms. We maintain that a major cause of the crisis is retributive attitudes to criminal justice in the United States, which are deeply entrenched in American politics, culture, and society, and have manifested most recently in the embrace of “tough on crime” policies. We demonstrate that such punitive attitudes have been generated and fueled by racism, the crime wave from about 1960 to 1980, economic instability over the past three decades, and the privatization of aspects of criminal justice policy and practice. In this Part of the Article, we offer solutions to overcome, or at least minimize, these barriers to expert-based sentencing reform.

We also argue that mass incarceration is attributable to a considerable knowledge gap regarding a core component of the sentencing system, namely, the proportionality principle. Proportionality, at least in theory, is universally endorsed as a bulwark of sentencing. In its crudest form it is the intuitively appealing principle that the “punishment should fit the crime.” The principle is so alluring that it is normally endorsed without qualification. However, it suffers from a fundamental problem: it is devoid of clear criteria. While there is near universal agreement that the seriousness of the punishment should match the gravity of the crime, there is not even a remote consensus regarding how these two limbs should be calibrated. The principle is so nebulous that it can be used to justify a ten-month or a ten-year prison term for a drug trafficker or an inside trader. A principle that is so fluid is in fact no principle at all; it is a meaningless, abstract aspiration. We contend that scholars' failure to formulate a coherent and persuasive theory of proportionality has made it easy, and even inevitable, for lawmakers to ignore sentencing knowledge in the design and promulgation of sentencing law and policy. In this Part of the Article, we attempt to give content to the principle of proportionality.

Before proceeding to substantive matters, it is opportune to deal with an ostensible paradox in this Article. A key argument of this Article is that scholarly writing, essentially in the forms of academic articles and books, has been largely ineffective in influencing sentencing reform. Yet, in our view, it is still important to raise this for discussion in an Article that will reach principally an academic audience because, in order to remedy any problem, the first step is to identify and recognize it, and this scholarly audience has the knowledge and resources to adjust its methods so that it does influence the direction of sentencing law and practice.

[. . .]

Expert analyses and empirical research regarding sentencing have focused on the content of sentencing law and exposed various flaws of the sentencing system. They have identified that its key current failings derive from lawmakers' pursuit of objectives that are largely unattainable, including incapacitation, marginal general deterrence, and specific deterrence, which has resulted in the imposition of harsh sanctions. Another significant problem has been lawmakers' failure to distinguish between offenses that significantly harm victims, namely, serious violent and sexual crimes, and less damaging crimes, such as property and drug offenses, and to reflect those differences in the penalties set for crimes.

Notwithstanding this knowledge, fundamental flaws in the sentencing system remain. This Article examines reasons why sentencing law is so resistant to evidence-based reform, and has proposed changes to address these issues and realize a fairer and more efficient sentencing system.

This Article argues that the gap between sentencing knowledge and practice and the consequent mass incarceration crisis is attributable particularly to the “tough on crime” agenda, which has thrived unabated given the lack of public empathy or concern for criminals. Such punitive attitudes to criminal justice have been fueled by racism against minority groups, especially African Americans, as well as the crime wave from about 1960 to 1980, considerable economic instability in the past three decades, and the privatization of aspects of criminal justice policy and practice and, in particular, the establishment of private prisons. The vacuous nature of the proportionality principle has also led to failings in the current sentencing system and the imposition of unduly severe sanctions. In theory, this principle could profoundly influence the type and severity of sanctions, but its lack of content has deprived scholars of an important counter-argument to the imposition of increasingly harsh penalties over the past few decades.

There is, however, now some prospect of meaningful sentencing reform owing to a growing awareness in American society that the prison population is so large that it is becoming too expensive to accommodate. To take advantage of current receptiveness to change and effect evidence-based sentencing reform, this Article maintains that it is vital to take a multi-pronged, systematic, and strategic approach. This will involve not only highlighting deficiencies in sentencing law and practice, but also injecting content into the proportionality principle and understanding and overcoming, or at least diluting, the bases and impact of punitive attitudes to criminal justice.

To this end, we suggest that the impact of race on sentencing must be accepted and immediate measures implemented to reduce the disproportionate penal burden imposed on African Americans. Such measures include introducing a sentencing discount for African American offenders, reducing the emphasis on prior convictions, and changing policing and prosecution practices that disproportionately target African Americans. In addition, it is critical to acknowledge that the crime rate has dropped dramatically in the last thirty years and that bringing more individuals within the scope of the criminal justice system and increasing prison numbers will impede the long-term economic and social flourishing of the United States. Further, it will be necessary to discourage the use of private prisons and undermine the power of this industry. At the heart of all of these reforms lies the recognition that reforms in the Progressive tradition will not produce the required changes to criminal justice policies and practices. They will not address the determinative role of racial prejudice or bias in criminal justice. Nor will they address the economic, political, and especially the moral problems created by privatization of prison operations.

Pursuing these recommendations will, however, make possible and more effective evidence-based reforms to the sentencing system, including those discussed in this Article, such as the introduction of a bifurcated system whereby only serious violent and sexual offenders are imprisoned. These reforms will considerably reduce the incarceration rate without diminishing community safety and save the community billions of dollars.

Professor and Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University, Melbourne.

Adjunct Research Fellow, Monash University, Melbourne.

Lecturer, Deakin University, Melbourne.

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