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April 15, 2018

Examining the "why" and "who" of modern mass incarceration and its potential alternatives

As we finish up the semester with a final few classes examining the particulars of modern mass incarceration and possible alternatives, I realize it would be useful and fitting to return to some of the early themes of the class concerning the "why" and "who" of sentencing.  Specifically (and building off themes stressed by Fordham Law Professor John Pfaff at the Reckless-Dinitz Lecture), I will likely start Monday's class by exploring:

(1) "why" incarceration has become such a popular punishment in modern American history, and

(2) "who" has been most responsible for the particular emphasis on incarceration in modern American history.

I think some reasonable answers to these questions are important for anyone eager to move the nation away from modern mass incarceration: without having some sense of just why incarceration has proved so popular and just who has had a leading role in inflating incarceration levels, it will be hard to engineer a successful change of course.

Especially because there have recently been a whole lot of notable new court opinions about Eighth Amendment limits on extreme juvenile prison sentences — see examples here and here and here and here and here from the Third Circuit, the District of Connecticut, the Iowa Supreme Court, the Georgia Supreme Court and the Wyoming Supreme Court — I am especially eager to discuss what role we think courts have played in creating modern mass incarceration and what role courts could play in moving us away from modern mass incarceration.

In this context (and again to serve as a kind of semester review), I think it important to recognize that courts have played a major role in the modern decline of the death penalty in the United States over the last two decades.  All sort of litigation has played all sorts of roles in "gumming up" the modern machinery of death, and many abolitionists have come to expect that the US Supreme Court will play a starring role in a final push to have the death penalty fully abolished throughout the United States. 

Is there any basis to hope or expect courts to play a major role in a decline in the use of incarceration in the United States over the next two decades?

April 15, 2018 in Alternatives to imprisonment, Class activities, Theories of punishment, Who decides | Permalink


Twenty years fairly long time. Throughout that time, the millennial generation will become more prominent in the criminal justice system and it would seem that as a more progressive group, they (we) lean more towards rehabilitation. I think that is just one of a few different reasons why it is plausible the courts will play a major role in the decline of incarceration.


Posted by: Emily Bowen | Apr 16, 2018 1:00:21 PM

I'm thinking of Ohio and it's recent passage of T-CAP and emphasis on prison diversion effort. Legislatures are dangling money in front of courts to pursue options that inherently should decrease incarceration. Judges are likely to accept funding and divert a few low level offenders away from a prison sentence, hopefully slowly chipping away at the problem. I know many areas in Ohio (rural) are unwilling to buy into the T-CAP programming yet, but I'd like to believe that as those who did choose to participate see success, more will buy-in to this new idea of prisons as the second, third, or fourth option.

Posted by: Shelby Slaven | Apr 18, 2018 1:46:44 PM

I think as marijuana continues to get decriminalized, there will be a decline in incarceration. So many people were incarcerated due to laws created during the "War on Drugs" era. As people's views change, and society changes with it, I am hopeful to see more leniency on marijuana charges. We can already see this in Ohio, since Columbus has changed the law on Possession of a Controlled Substance to a minor misdemeanor, limiting the punishment to a small fine.

Posted by: Jon Getson | Apr 21, 2018 2:19:21 PM

If we truly believe that the Courts have a role to play in decreasing mass incarceration, then something must pave the way for them to act. Usually, when the Supreme Court acts, it follows public opinion, particularly if that opinion is evolving. I read a poll from GQR the other day that showed a plurality of Americans believe that the incarceration rate is too high, (40%) versus those who think its about right, (33%) and those who believe it to be too low (9%). A recent Morning Consult poll found that 51% of Americans believe there are too many people in prisons, down from the highs of the Clinton "tough on crime" years.

The really interesting thing about this GQR poll is that it compares the opinions of rural voters with more urban voters on this issue. These rural voters are also moving against mass incarceration, with 61% of rural residents saying they don't believe that constructing prisons reduces crime, and only 27% of those rural residents believe crime in their immediate vicinities to be a major concern.

However, I don't see any action coming from this Congress or Administration, no matter the poll numbers. Crime, and by extension, those individuals involved in it, have become nothing more than political playthings. While the conditions are fertile for bipartisan action if the right tools are used, it seems like all those in power are interested in are wedge issues designed to drive people apart, rather than bringing them together to fix a broken system. So now, we as lawyers and law students turn our eyes to the courts, since the other branches of government designed to remedy these issues are unresponsive at best.

I don't see the courts acting any time soon to fix this issue, nor do I think they should. This is clearly a problem for the legislative and executive branches, and until we stop our reliance on unelected judges to remedy the problems in our law, we're going to have real problems in creating and sustaining a well-functioning society, much less an effective system of criminal justice.

Posted by: Grant Grissom | Apr 23, 2018 9:59:40 AM

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