The least controversial observation one can make about American criminal justice today is that it is remarkably ineffective, absurdly expensive, grossly inhumane, and riddled with discrimination. The beating of Rodney King was a reminder of the ruthlessness and racism that characterize many big city police departments. But the other aspects of the justice system, especially sentencing practices and prison conditions, are every bit as harsh and unfair. Nevertheless, the Clinton administration, Congress, and many state legislatures, claiming they are responding to the public’s fears of crime, are determined to promote and strengthen the very policies that make the criminal justice system so bad. Despite repeated failures and inequities of criminal justice, they are asking for more of the same.
American prisons and sentencing practices were not always disreputable. Immediately after the Revolution, in an effort to rid the country of the relics of British imperial rule, state legislatures drastically reduced the number of capital sentences. In the 1820s and 1830s, American state governments were pioneers in prison design; they built huge and expensive institutions that provided each inmate with his own private cell, and sometimes, as in the Pennsylvania Penitentiary, his own private exercise yard. The prison, by excluding all corrupting influences and subjecting the inmate to steady labor and a quasi-military routine (exemplified by the lock step), would reform the deviant and eradicate crime from the society. That this simplistic and utopian mission failed to achieve its aims is not nearly as surprising as the influence it exerted abroad. Alexis de Tocqueville, it should be remembered, came to the United States not to write Democracy in America but to report on American prisons for the French Assembly.
A second phase of prison reform took place in the opening decades of the twentieth century. American states were the first to introduce indeterminate sentences, under which the inmate was to serve, say, one to five years; the actual time of release depended on the parole board’s estimate of whether the offender had been rehabilitated. The prisons introduced educational programs and psychological counseling and dropped the insistence on isolation; ostensibly, life behind walls would prepare inmates for life outside. Once more, European criminologists and legislators came to study American methods and generally admired the new measures.
But again the realities of prison life contradicted the reformers’ hopes. Indeterminate sentences did not lead to “rehabilitation,” and visitors to prisons could not ignore the overcrowding and brutality they found there or the periodic riots that took place in them. Such leading reformers as Thomas Osborne and Sheldon Glueck, and the most influential national commission on law enforcement, the 1931 Wickersham Commission, attributed these failures not to an inherent flaw in the design of the system but to the incompetence of administrators, the ignorance of the guards, and the stinginess of the legislators. For the reformers, rehabilitation and education continued to be altogether feasible goals of the prison system.
Beginning in the 1970s, and continuing to this day, an impressive literature has discredited each component of this inherited prison system. Foreign observers are appalled by current American prison conditions and sentencing practices: they cannot believe that we could be so retrogressive. Nils Christie, an eminent Norwegian criminologist and author of Crime Control as Industry, has found US prisons so repellent that after opening his analysis with the apologetic phrase: “Whom one loveth, one chasteneth,” he goes on to draw an analogy with Nazi Germany:
The extermination camp was a product of industrialization…a combination of thought-patterns, social organization and technical tools. My contention is that the prison system in the USA is rapidly moving in the same direction.
American critics display less hyperbole but no less indignation. Human Rights Watch, having investigated prison conditions throughout the world, found in the US “numerous human rights abuses and frequent violations of the UN Standard Minimum Rules for the Treatment of Prisoners.”
The most conspicuous sign of failure, cited by Christie, Human Rights Watch, and practically every other observer, is the heavy American reliance on keeping people in prison. The United States leads the world with a rate of 455 incarcerated per 100,000 of the population. South Africa is a distant second with 311 per 100,000. To be sure, as Aryeh Neier and I observed in these pages, a low rate of incarceration may reflect pervasive police brutality; in India, for example, police prefer to beat up petty criminals rather than imprison them.1 But such conduct is irrelevant to comparisons one might make with the Netherlands (40 per 100,000), or Japan (45), or France (81), or England (97).
Moreover, the prison population is growing at the fastest rate in the world. Between 1980 and 1990, the number of inmates in state and federal prisons rose by 168 percent, from 330,000 to 883,000, and predictions are that the number will reach one million by 1994. The increase in the number of offenders sentenced to probation instead of prison, or paroled from prison, is no less dramatic. In 1980, 1.1 million adults were serving sentences on probation and 220,000 were on parole. By 1990, 2.5 million were on probation and 457,000 on parole. 2
Keeping people in prison places a large burden on state budgets. The Edna McConnell Clark Foundation, the leading private sponsor of programs for prison reform, estimates that in 1992 the US spent 25 billion dollars on its prison system, making it the second fastest growing item, after Medicaid, among state government expenditures. New York, for example, between 1983 and 1990 built twenty-seven new prisons at the short-term cost of 1.6 billion dollars, and eventual cost of 5.4 billion over thirty years if one includes the interest payable on state bonds floated for the construction.
It was once commonplace to observe that a year in jail was as expensive as a year at Harvard, but by now jail costs in many cities are much higher. Maintaining one inmate for one year in New York City costs $58,000, at least twice the tuition and living expenses at a private university. Unforeseen contingencies push costs still higher. New York State spends $50 million dollars a year on AZT for inmates with AIDS, and New York City, to abide by a court order, just built eighty-four isolation cells at $450,000 each, to house inmates with tuberculosis.
Despite these expenditures, prison capacity has not kept up with demand. On average, federal prisons are 46 percent over capacity and state prisons are 31 percent. Cells built for one inmate often hold two or even three. At the start of 1993, forty states and the District of Columbia were under court orders to correct overcrowding and improve substandard conditions. So were one third of all the jails in the country. Many of these orders are not being carried out.
The justice system is most troubling in its impact on minorities, particularly on African Americans. As Jerome Miller, the head of the National Center on Institutions and Alternatives, recently reported, 42 percent of black men in Washington, DC, between the ages of eighteen and thirty-five are either in prison or on probation or parole, out on bail, or being sought on an arrest warrant. For black men in Baltimore, the comparable figure is 57 percent.3 Nationwide, blacks make up 48 percent of prison inmates, as against 12 percent of the population. The disparity is even more flagrant if one looks, as did Michael Tonry, professor of law at the University of Minnesota, at rates of confinement per 100,000. For whites, it is 289, for blacks, 1,860.4 The likelihood of being in prison or in jail is seven times higher for black Americans than for whites.
Among the many reasons why so many blacks are in prison—including high rates of unemployment and inadequate urban schools—none is more decisive than the changes in the administration of criminal justice, particularly the sentencing practices that have been adopted since the 1980s. During the 1970s, liberal reformers—myself among them—became disillusioned with the principle that indeterminate sentences would encourage greater justice in punishment. The dominant view, expressed in many reports and studies,5 was that openended sentences adapted to the personal characteristics of the offender—his education, jobs, marital state, and so on—gave judges and parole boards the discretion to penalize blacks and lower-class offenders more heavily than white, middle-class ones. The reports also argued that rehabilitation programs were a sham. Not only were they ineffectual, but they made imprisonment seem legitimate and desirable. The rehabilitative model, as Willard Gaylin and I wrote in 1975, “has been more cruel and punitive than a frankly punitive model would probably be.” Fostering the illusion that inmates were locked up for their own good, rehabilitation made sentences of five, ten, and fifteen years appear benevolent.
From this diagnosis came a proposed cure: encourage legislators to enact fixed sentences, reduce the discretion of the judge to set the penalty, and restrict, or even eliminate, the power of the parole board to determine the moment of release. The aim was to let the crime and the previous criminal record of the offender dictate the punishment, without any reference to the social characteristics of the criminal, including race, gender, occupation, work history, etc. Sentencing guidelines, drawn up in advance, would set the punishment within narrow ranges. In this way, virtually all first-time burglars would get, for example, a sentence of between twelve and eighteen months, regardless of whether the burglar was white or black, male or female, from the urban or rural part of the state, or standing before a judge with a reputation for leniency or harshness.
The reformers were aware of the possibility that fixed sentences might turn out to be even longer than indeterminate ones. They recognized that longer sentences were the goal of the conservative and right-wing thinkers who also advocated fixed sentences. Such conservatives argued, none more vigorously than James Q. Wilson, that indeterminate sentences put offenders back on the streets too quickly. Since the actual time served almost always turned out to be less than the maximum provided in the original sentence, the criminal, they said, was being prematurely released and allowed to return to a life in crime. When “twenty-five years to life” turned out to be eight years, because parole boards often released inmates at one third the minimum sentence, conservatives warned that the safety of society was being compromised. Thus fixed sentences represented a long overdue return to “truth in sentencing” which would make offenders serve out their time.
The oddness of the alliance did not weaken liberals’ enthusiasm. They fully expected that the sentences indicated in guidelines would reduce the severity of penalties, starting with less serious crimes, and they believed that the number of prison cells available would limit the numbers put in prison. Why were they so optimistic? In retrospect, they exaggerated the appeal that a claim to fairness would have. But they were so appalled by the existing system that they were overeager to find an alternative to it. In 1972, Marvin Frankel, then a federal judge in New York, published a highly influential book, Criminal Sentences: Law without Order, arguing that judges exercised “almost wholly unchecked and sweeping authority.” He found it “terrifying and intolerable for a society that professes devotion to the rule of law” to perpetuate these sentencing practices. His overwrought language conveys just how anxious he and others were that changes be made.
Moreover, during the early 1970s a fierce attack took place on the legitimacy of “total institutions,” to use Erving Goffman’s term. Partly as a result, the number of prison inmates, along with mental hospital inmates, was actually declining. Indeed, the sense that prisons were losing their hold on public policy was reinforced by reactions to the Attica riot. The official New York State report on Attica expressed shame at the wretchedness of prison conditions, not hostility to the rebellious inmates. Reformers also expected their legislators to vote in ways that would cost the taxpayers less. Since prisons were expensive and becoming more so because of court-ordered improvements, politicians, they believed, would welcome a reduction in the number of prisoners.
Finally, reformers were attracted by the prospect that appointed commissions, not individual judges or parole boards, would be setting the scale of penalties. The advocates of commissions, it must be said, did not spend much time discussing who would actually serve on them or how their decisions would be translated into law or practice. Rather, they were convinced that sentencing decisions should be removed from politics and the criminal justice system insulated from popular pressures. Sentencing commissions, like other administrative bodies (most notably, the Securities and Exchange Commission and the Food and Drug Administration), would, it was thought, bring expertise and rational decision-making into bitterly contested disputes over sentences. Once decisions on punishment were removed from arbitrary judges, from overly conservative parole boards, and from legislators trying to please constituents, prison time would be doled out more sparingly and alternatives to prison would be used more frequently.
The reformers proved wrong on all counts. Fixed sentences were introduced in the 1980s, both in the federal system and in roughly one third of the states. But apart from a few jurisdictions (most notably Minnesota), sentencing guidelines have increased the time served and have had relatively little effect on disparity in sentences. They have promoted prison overcrowding and reduced the importance of judges in sentencing, while giving more discretion to prosecutors. The distaste for rehabilitation has also contributed to making prisons into human warehouses. If educational and training programs are seen as futile, why should the state spend money on them?
Hostility to indeterminate sentences also made it easier for the federal government and the states to enact mandatory minimum statutes, which inevitably increase the time to be served. Once decisions about punishment became more mechanical—a matter of consulting a chart—and less concerned about what would be a just sentence for a particular criminal, mandatory minimum sentences seemed to have their own logic. Over one hundred provisions for mandatory sentences are now to be found in the federal code, with crimes involving guns and drugs accounting for most of them.6 Thus, between 1984 and 1990, sentences for drug offenders who did not carry firearms increased from thirty-six months, with the possibility of earlier release on parole, to sixty-six months with no parole. Moreover, mandatory minimum sentences have greatly increased the authority of prosecutors. In return for a guilty plea, they will indict on a lesser offense which does not carry a minimum. And prosecutors continue their discriminatory practices: far more often than blacks, whites get the chance to plead guilty to lesser crimes and thereby receive sentences below the mandatory minimums.7
Why did the good intentions of the reformers lead to such punitive results? Part of the answer is the changed political environment of the 1980s. Reagan and Bush were able to make crime and sentencing procedures an issue that middle-class Americans could use to express their frustrations not only with unsafe streets but with affirmative action and the costs of welfare. Reformers also forgot what Nils Christie emphasizes, that many bond holders see prisons not as a drain upon public resources but as a sound investment, while some job seekers see them as a source of employment.
More important, reformers were wrong to think that sentencing commissions would be insulated from politics. The history of sentencing practices in Washington State, as explained by David Boerner, professor of law at the University of Puget Sound, is a case in point.8 Politicians wanted to change sentencing standards not so much because of a rising crime rate as because of a widely shared belief that sentencing should be less discretionary and that something had to be done to reduce overcrowding in the state’s prisons (which a federal court ruled violated constitutional standards). The legislation approving a sentencing commission and determinate sentences was drawn up by two state representatives, Mary Kay Becker, a Democrat, and Gene Struthers, a Republican, who were otherwise so opposed to each other politically that their collaboration, Becker said, was like “Jane Fonda and John Wayne co-authoring a book on the Vietnam War.”
The Washington State sentencing commission was dominated by insiders: it included four judges, two prosecutors, two defense attorneys, three state criminal justice officials, the state director of finance, and three private citizens. The commission set out explicit guidelines for sentencing, which the legislature subsequently adopted and judges were obliged to follow. Prison sentences were reserved for violent offenders, with time to be served based exclusively on the crime itself and the offender’s past criminal history; nonviolent offenders were to be put on probation and sentenced to community service.
These guidelines initially reduced the imprisonment rate, so that Washington State soon had a surplus of prison cells (which it leased to other states). But beginning in 1990, the prison population grew (by 23 percent the first year, 10 percent the second), mostly because the legislature, with the concurrence of the commission, revised the fixed sentences upward. It set tougher penalties for drug use and drug sales, responding to pressures from prosecutors who said the system was too soft on dealers. In the new scheme, judges were not allowed to sentence first-time offenders to probation and treatment programs, so 92 percent of first-time drug offenders now went to prison. The legislature also increased punishments for all drug offenders so that average sentences became three times as long. (In 1988, the average sentence for possession and delivery of heroin or cocaine was nineteen months; in 1992, it was fifty-six months.) At the same time, and after the mutilation of a young boy by a sex offender who had served his maximum sentence and had just been released from prison, the commission, responding to explicit legislative directions, revised the penalties for all sex abuse crimes. The average sentences served then increased from thirty-three months to seventy-six months.
As the Washington State experience suggests, transferring authority from judges and parole boards to a commission may make sentencing more of a political issue than it was before. Outrageous crimes can be used as evidence to support long-term changes in penal codes. In the past, a public outcry often affected a judge’s behavior, and when there was a rash of robberies or a vicious child-abuse case, the next person to commit such a crime often received a harsher sentence in the hope of deterring future crimes. But when sentencing commissioners and legislators feel they must show they are tough, the repercussions go beyond an increased sentence for one highly publicized case and result, for years to come, in harsher penalties for entire categories of crimes. The real problem, as Christie shrewdly comments, is that once sentencing becomes a “tool in the hands of politicians,” we get “democratic crime control.” That is, there are no limits to punishment so long as those limits do not adversely affect the majority.
Probably the most serious drawback of the 1970s reform program was the failure to anticipate the prominence that would be given drug control, the issue that now dominates criminal justice procedures.
Attempts to correlate crime rates with changing criminal policy are usually futile, because measures of crime are inexact. By some measures (e.g., the FBI summary of police reports), violent crime in the nation has increased over the past decade, up 23 percent between 1980 and 1990; by other counts (the US Census survey, which asks citizens whether they have been victims of crimes), violent crimes have gone down 11 percent. Even more important, attempts to correlate public concerns about crime with fluctuations in rates of crime are futile because attitudes reflect not only personal experience but incidents recalled by friends or reported by the press and television. Thus Christopher Jencks recently reviewed crime data and observed that we are a more violent country today than we were in the 1950s and 1960s when today’s middle-aged population was growing up, but less violent than we were in the late 1970s.9 So whatever the trends, people between the ages of forty and fifty may tend to perceive the streets as less safe than they once were.
By the same token, Rudolph Giuliani’s recent victory in New York was ascribed in part to a widespread belief among voters that the city was becoming increasingly dangerous. Current reports, however, indicate otherwise. In December 1993, the FBI announced that during the past year, violent crimes such as murder, rape, robbery, burglary, and arson had declined by 8 percent in the Northeast, by 6.8 percent in upstate New York, and by 5.6 percent in New York City. Indeed, homicides in New York City are down for the third year in a row. But that is small consolation to citizens who have come to believe that virtually anyone, anywhere, is likely to become a victim. Again, the perception is inaccurate; poor people in bad neighborhoods are most likely to be victims of violent crimes. Twelve of New York’s seventy-five police precincts, for example, account for 44 percent of total homicides, and the twelve are located in the most depressed sections of East Brooklyn, Harlem, and the South Bronx. Nevertheless, these figures do not relieve the fears of those who live elsewhere.
What is clear is that arrests, convictions, and imprisonment for drug offenses, as distinguished from other crimes, have risen sharply, while everyone agrees that the increases reflect a change not in street behavior but in patterns of enforcement and punishment. Marc Mauer, the assistant director of Washington, DC’s Sentencing Project, calculates that drug arrests increased during the 1980s by 88 percent, and that one out of every four prison inmates is now serving time or awaiting trial for a drug offense. (In 1983 it was one in eleven.) Nearly 60 percent of federal prison inmates have been convicted of drug offenses, receiving on average eight-year sentences, twice the length of the sentences given in 1980. In state prisons, drug offenders make up 22 percent of inmates, up from 6 percent. One third are in prison for possession and two thirds for sale or manufacture, but the distinctions have less to do with street behavior than with plea bargaining. In New York City offenders sentenced for possession or sale of drugs increased over 600 percent between 1983 and 1989, notwithstanding the increasing severity of prison sentences for drug offenders during this period.
Drug law enforcement and punishment are aimed mostly at minorities, and the “war on drugs” is in large part a war on blacks. The proportion of blacks among all those arrested for drug possession increased from 22 percent in 1981 to 37 percent in 1990. In Baltimore, among adult offenders, blacks are five times more likely than whites to be arrested for drug offenses; among juveniles, blacks are ten times more likely. Of all drug possession offenders who received a prison sentence in New York, 91 percent were black or Hispanic; in California, 71 percent of those sentenced to prison for drug possession were black or Hispanic.
In crimes involving drugs, as with crime more generally, it is almost impossible to sort out whether the disparity in convictions and punishment between whites and blacks reflects actual behavior. Do blacks commit more of the heavily penalized crimes, or do police, prosecutors, and judges come down harder on blacks than whites? Undoubtedly both statements are true, but discrimination is especially apparent in drug enforcement. For example, some state penal codes punish the possession or use of heroin far more severely than cocaine, a tactic so obviously biased against blacks and Hispanics that one federal court held the provision unconstitutional.
Racial discrimination also helps to explain the disparity in punishment between drunk driving and drug use. Mauer and his colleague Cathy Shine recently calculated that although drunk driving causes as many deaths as drug use, it is punished far less severely. It is true that drug use is often linked with violent crimes. But Mauer and Shine suggest that the difference may also lie in the fact that all but a few of those convicted of drunk driving are white, while those convicted for drug offenses are mostly black or Hispanic.10 Prison overcrowding, the increasing disappearance from city streets of young black urban males, and the fate of the 1970s reformers’ hopes for the fixed sentence are largely explained by the system’s response to the use of drugs.
The short, unhappy history of the new federal sentencing code starkly demonstrates how liberal reform produced rigid and punitive policies. The Yale Law School professors Kate Stith and Steve Koh skillfully show in the Summer 1993 Wake Forest Law Review the fate of the initiative for revising federal sentencing codes in the 1970s, which came from Senator Ted Kennedy. His aim was to create a commission that would bring greater equity to sentencing by not allowing such factors as schooling, income, and family life to alter the severity of the punishment. In Kennedy’s original proposal, the commission was also to insure that time served did not increase, that prisons did not become overcrowded, and that alternatives to prison were incorporated into the system. But Kennedy never could make up his mind. Sometimes he made it seem as though the guidelines were advisory, at other times as though they were binding. But his goal was to restrict judges’ discretion so as to reduce discrimination.
The Kennedy bill did not pass during the Carter administration, in part because the House of Representatives was far less attracted to mandatory guidelines, and in part because sentencing became entangled with conservatives’ efforts to revise the entire federal criminal code. But rather than abandon his proposal when Reagan became President, Kennedy continued to campaign for it; and he too readily accepted a number of compromises. The bill that was signed into law by President Reagan in 1984 had none of the nuances of the original proposal. The earlier instructions to the commission to decrease the amount of time served and not to overcrowd prisons were weakened. More important, the commissioners were appointed by the President with William Wilkens, a federal appeals court judge from South Carolina and a close associate of Senator Strom Thurmond, as chairman. Under Wilkens’s leadership the commission adopted Reagan’s rhetoric about “law and order” and “getting tough with the criminal.” Its interpretations of the statute consistently curtailed judicial discretion and made penalties more severe. The commissioners ruled, for example, that sentences were to be meted out on the basis of “real offense”—that is, what the offender had presumably done, not what he had pleaded guilty to in bargaining with the prosecutor or been convicted for in court.11
In day-to-day practice, as Michael Tonry explains, the judge must consult a set schedule to reach his sentence. He starts at the “base offense level,” say, burglary, which has a score of 20, and then adds points to it on the basis of how the crime was carried out. If the offender discharged a gun, he adds seven points. If the crime resulted in bodily injury, he adds two; if it was serious bodily injury, another two. If $10,000 or less was stolen in the burglary, he adds nothing. But if the sum was between $10,000 and $50,000, he adds two, if more than $250,000 he adds three, and so on.
The judge then adds up the points and consults the guideline chart, which has the offense level scores running down the left, and, running across the top, six columns scoring the offender on the basis of his past criminal record. So if the burglar fired a gun, caused serious bodily injury, and made off with $300,000, he gets a score of 34; if this was his first offense, his sentence must fall between 151 and 188 months. If he has a long record, let us say IV on the scale of VI, his sentence must fall between 210 and 262 months.
The only two factors a judge may use to reduce the guideline’s sentence are the offender’s “acceptance of responsibility,” i.e., by pleading guilty, which can bring a modest reduction, and his willingness to provide “substantial assistance” to the government, i.e, by turning state’s evidence and implicating others, which can bring a major reduction. The judge may not reduce sentence time because of the offender’s age, his employment record, his having a stable family life, the fact that he has children at home to support, or any other personal characteristic.
The impact of these guidelines has been to increase the prison population and the average time served—from twenty-four months in July 1984 to forty-six months in June 1990. Sentences of probation have declined. The guidelines have clearly elevated the prosecutor over the judge. Because sentences are severe, offenders may be tempted to go to trial rather than to plea bargain; to make certain this does not happen, prosecutors define the “base offense” downward to bring about a reduction in penalty, and hide their action so that the “real offense” on which the guidelines are set cannot be known. Thus in return for a guilty plea, the prosecutor will agree to charge the defendant with robbery without the use of a weapon, although he carried a pistol. Defendants and their lawyers understand that judges no longer control sentencing, bound as they are to the guidelines. All the real bargaining has to be done with the prosecutors.
Are convicted offenders now more likely to receive the same punishment regardless of their race or which judge presides over their case? Research findings are too meager for us to know for certain, and to the degree that prosecutors bury their tracks, the answers will remain obscure. Still, the Government Accounting Office, the research organization for Congress, finds that at present no decline in disparity can be demonstrated. Most other analysts are less cautious, and are convinced that the disparity has not decreased. What is clear is that judicial authority has weakened and judicial anger and frustration have mounted. Federal Judge Jack Weinstein spoke for many of his colleagues when he said:
Whereas sentencing once called for hours spent reflecting on the offense and the person, we judges are becoming rubber-stamp bureaucrats. When we come to see ourselves as judicial accountants, freed from the awful responsibility of imposing a sentence, we will have abdicated our judicial role entirely.12
Reformers tend to agree on the flaws in current policies but they are uncertain about what should be done instead. Nils Christie, who is critical of determinate sentences, would like to restore sentencing discretion to the judges, but recognizes that to do so would only revive the dilemmas faced in the 1960s, when judges exercised unchecked and often biased authority. He believes that drawing up sentencing formulas is a hopeless task. But he refuses to suggest alternatives: “As a criminologist I feel more and more that my function is very similar to that of a book-reviewer or art critic.”
Norval Morris, Professor of Law at the University of Chicago and one of the most astute students of criminal justice, and Michael Tonry are more ambitious. Their latest book, Between Prison and Probation, is a sophisticated and imaginative plea for establishing a range of alternatives to prison. They want a system that would make use of substantial fines, residential control, electronic monitoring, sentences to community service and treatment, and supervised probation and parole. Judges would continue to sentence many violent criminals to prison but they would not be forced to choose between imprisonment and sending a criminal home.
Morris and Tonry recognize the problems with such a proposal. First, it is entirely possible, even likely, that judges will use the alternatives to prison mainly on behalf of white, middle-class offenders and not for blacks, thereby making the prison system even more of an apartheid institution than it is now. Second, alternatives to prison tend to become supplements to prison. Judges would likely apply the new range of punishments not to those they consider hardened criminals but to those that they have formerly tended to treat more leniently. So a sentence to twelve months of community service is imposed not on people who otherwise would have entered a maximum security prison but on those who would have been released on probation without conditions. The net effect, then, is to increase, not reduce, the severity of sanctions and the number of people under state control. Nevertheless Morris and Tonry are right to believe that these risks are worth taking. At least some offenders who are guilty of nonviolent crimes (including blacks) will be spared the miseries of confinement. Perhaps, too, those who run the criminal justice system will be able to learn from the experience and deal more intelligently with offenders generally.
Taking a more frankly political approach, the Sentencing Project recently launched a “Campaign for an Effective Crime Policy,” trying to bring prison officials, prosecutors, and others inside the system together with outsiders and would-be reformers. The Campaign calls for a review of mandatory sentences and federal sentencing guidelines, but does not suggest what might replace them. It urges more funding for drug rehabilitation and alternatives to imprisonment. But its ultimate recommendation is that the President establish a National Commission on Crime to suggest improvements for the administration of American justice.
This open-ended proposal has merit precisely because so much uncertainty prevails about the direction that policy should take. But were such a commission created under the aegis of the Department of Justice, and were it to be influenced by the views of Janet Reno, what might it do? If we look at the half-dozen speeches the attorney general has delivered to law enforcement groups and to the US Sentencing Commission since taking office, we find each repeats the same themes. Reno makes clear at the outset that she favors imprisoning serious offenders—“dangerous, violent recidivists are [to be] put away and kept away.” She then observes how expensive and overcrowded prisons are, and how “the American people are fed up with people who say, let’s pass tougher sentences without putting a price tag on.” It is foolhardy, she insists, to be bound by mandatory minimum sentences and to put nonviolent offenders, especially drug users, in prison. They occupy cells better reserved for violent criminals and they need treatment programs, not punishment. Otherwise, they will simply return to prison again and again.
Reno makes all these points in the first ten to fifteen minutes of her speeches, but she then goes no further. She says nothing about the wisdom of sentencing guidelines, and does not propose any specific new policies on drugs. She does not publicly discuss the specific suggestions of such experts as Morris and Tonry. Instead, she typically devotes most of her talk to what is obviously her favorite theme: the need to rescue America’s children. “For the last thirty years in America we have forgotten and neglected our children,” she tells her audiences. “Unless we reach out and join our hands together and reweave the fabric of society around too many of our children and our families, we are never going to address the problems.”
Reno is surely right that we “will never be able to build enough prisons eighteen years from now for children who are born today from drug-involved mothers unless we start now in giving that child a good chance at a strong and healthy life.”13 But as important as it is to look beyond the problems of criminal justice, the attorney general should also address the many urgent and unresolved questions inherent in the system itself, and this she has failed to do.
Accordingly, no one should be surprised that the new Senate bill on crime control was drawn up without any advice from Reno, or, for that matter, from the White House. The Senate bill, now in conference with the House and likely to be enacted this winter, promises to make the system even worse. It accelerates the trend toward fixed sentences and mandatory minimum sentences, and relies more heavily upon imprisonment. It also provides three billion dollars for the Justice Department to build and run ten regional high security prisons; each will hold no fewer than 2,500 inmates convicted in state courts of violent crimes. To qualify for this fiscal windfall (whereby the federal government assumes all costs of confinement), the participating states must adopt a “truth in sentencing” formula under which offenders must serve no less than 85 percent of sentences that are five years or longer; the states must also have “a binding sentencing guidelines system in which the sentencing judges’ discretion is limited to ensure greater uniformity in sentencing.”
The Senate bill is so keen on punishment that it provides an additional three billion dollars to open boot camps for nonviolent young offenders. The camps, to be located where possible on closed military bases and to be run by one-time drill sergeants, are to compel “adherence by inmates to a highly regimented schedule that involves strict discipline, physical training, and work.” Finally, the Senate bill increases the number of mandatory minimum sentences, including one requiring life in prison without parole to all felons guilty of two or more prior convictions for drug offenses or crimes of violence.
It takes little imagination to calculate the likely impact of these measures: more minorities will be locked up; the time served will increase; boot camps will channel more people into the prison system; prosecutors will flourish and judges will complain. Ill-informed citizens will think that we are finally getting tough on crime and that by locking up repeat offenders we are making the streets safer. But none of these actions is likely to reduce crime. Despite the popular faith in prisons, rates of imprisonment cannot be closely correlated with rates of crime. The number of people in prisons and jails between 1980 and 1991 doubled and did so at a steady rate. But the overall crime rate followed a very jagged pattern—down from 1980 to 1984, then up between 1985 and 1991, then down again in 1992 and 1993. As the accompanying graphs show, the rates for murder, rape, robbery, and burglary all followed different patterns between 1980 and 1991. There is no evidence that the staggering number of prisoners serving time for drug offenses is having an appreciable impact on drug use or drug-related crimes.
But the worst feature of the Senate bill and the White House’s silence about it is that just when we desperately need to explore new solutions to crime and punishment, we are being given programs that are discriminatory, ineffectual, and costly. We need well-designed, limited experiments to see what the impact of decriminalization would be on drug use and crime rates. Instead, when the Surgeon General remarked it was worth investigating whether a different drug policy might reduce crime, she was rebuked by the White House. Experiments should also be made to find ways to restore judicial discretion and arrive at sentences that will deter criminals without being excessive. Instead the current Senate bill increases the number and length of mandatory sentences, while the attorney general will not set out a specific criminal justice program of her own. We should be considering alternatives to incarceration of the kind recommended by Norval Morris and Michael Tonry—not building enormous regional prisons and boot camps. The increasingly severe punishments called for in the Senate bill are no remedy for the thwarted life circumstances that account for much of the crime being committed today, and they promise to create an even greater prison industry without effectively reducing crime. But to break out of our current fixation on prisons would require national political leadership, which has so far been sadly absent.
February 17, 1994
“India’s Awful Prisons,” The New York Review, May 16, 1991. ↩
Americans Behind Bars (The Edna McConnell Clark Foundation, 1993), pp. 2–3. ↩
Jerome G. Miller, “Search and Destroy: The Plight of African American Males in the Criminal Justice System,” August 1992; National Center on Institutions and Alternatives, “Hobbling a Generation,” September 1, 1992. Both reports are available from the center’s offices in Alexandria, Virginia. ↩
Michael Tonry, “Racial Disproportion in US Prisons,” British Journal of Criminology, forthcoming. Tonry notes that the United States is no worse in this respect than England (blacks), Canada (native population), and Australia (aboriginal people). His point is not to exculpate but to demonstrate how pervasive the problem is. ↩
Among others, the American Friends Service Committee, Struggle for Justice, The Twentieth Century Fund, Fair and Certain Justice, and the Field Foundation Committee for the Study of Incarceration, Doing Justice (by Andrew Von Hirsch, with an introduction by Willard Gaylin and me). ↩
See the studies by Stephen J. Schulhofer of the University of Chicago. ↩
Stephen J. Schulhofer, “Rethinking Mandatory Minimums,” Wake Forest Law Review, Vol. 28 (Summer 1993), pp. 199–222. ↩
David Boerner, “The Role of the Legislature in Guidelines Sentencing in ‘The Other Washington,’ ” Wake Forest Law Review, Vol. 28 (1993), pp. 381–420. ↩
Christopher Jencks, “Is Violent Crime Increasing?” American Prospect, Winter 1991. ↩
“Does the Punishment Fit the Crime? Drug Users and Drunk Drivers, Questions of Race and Class,” The Sentencing Project, March 1993. ↩
Kate Stith and Steve Y. Koh, “The Politics of Sentencing Reform,” Wake Forest Law Review, Vol. 28 (1993), pp. 223–290. ↩
Michael Tonry, “The Failure of the U.S. Sentencing Commission’s Guidelines,” Crime and Delinquency, Vol. 39 (1993), pp. 131–149; Jack B. Weinstein, “A Trial Judge’s Second Impression of the Federal Sentencing Guidelines,” Southern California Law Review, Vol. 66 (1992), pp. 357–366. ↩
Speech by the Honorable Janet Reno at the opening dinner of the United States Sentencing Commission symposium, June 16, 1993, pp. 13, 14, 16. ↩