Remodeling American Sentencing: A Ten‐Step Blueprint for Moving Past Mass Incarceration

Abstract

SummaryWhen and if the will to roll back mass incarceration and to create just, fair, and effective sentencing systems becomes manifest, the way forward is clear.First, three‐strikes, mandatory minimum sentence, and comparable laws should be repealed.Second, any three‐strikes, mandatory minimum sentence, and comparable laws that are not repealed should be substantially narrowed in scope and severity.Third, any three‐strikes, mandatory minimum sentence, and comparable laws that are not repealed should be amended to include provisions authorizing judges to impose some other sentence “in the interest of justice.”Fourth, life‐without‐possibility‐of‐parole laws should be repealed or substantially narrowed.Fifth, truth‐in‐sentencing laws should be repealed.Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.Seventh, every state that does not already have one should establish a sentencing commission and promulgate presumptive sentencing guidelines.Eighth, every state that does not already have one should establish a parole board and every state should establish a parole guidelines system.Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.Tenth, every state should enact legislation making all prisoners serving fixed terms longer than 5 years, or indeterminate terms, eligible for consideration for release at the expiration of 5 years, and making all prisoners 35 years of age or older eligible for consideration for release after serving 3 years.These proposals are evidence‐based and mostly technocratic. Those calling for prison population targets and reducing the lengths of sentences being served may seem bold to some. Relative to the problems they address, they are modest and partial. Decreasing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be considered overly ambitious.