Judicious Imprisonment: Does Current Sentencing for Non-Violent Offenses Promote Political Legitimacy?

Abstract

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and Attorney General Jeff Sessions’s statements and policies that call for increased mandatory sentences, cracking down on illegal immigrants, and aggressively enforcing drug laws might be the iron fist that breaks the back of an already collapsing criminal justice system. Many, including judges currently sitting on the bench, believe that numerous unjust laws and their unjust penalties have brought the United States penal system to this breaking point. To those Americans outside of prison that think they will never be jailed, Tenth Circuit Court Judge Alex Kozinski warns them, “You’re (probably) a federal criminal.” Due to the proliferation of criminal laws, the criminal “justice” system subjects virtually all Americans to the possibility of imprisonment for conduct that does not even come close to meriting imprisonment. Amid this chaos, a deep and fundamental question brews: Can the state justifiably coerce an individual to comply with its unjust laws? Even if the penalties for breaking unjust laws are life in prison or death? If not, then society’s stability is threatened. This article negotiates a middle position. The government is justified in enforcing unjust laws only if these laws are democratically enacted and are almost-just. How much almost-just is depends on the kind of law at issue. Thus, lawmakers, prosecutors, and judges need to carefully distinguish crimes that directly affect only oneself, crimes that are violent, crimes that are primarily monetary-based, regulatory crimes, and others. To implement reforms, this article proposes new affirmative defenses for crimes, enhanced prosecutorial discretion, and more robust judicial review as viable mechanisms to invalidate laws and penalties that are not almost-just.