It was undoubtedly recognition of the futility and the wastefulness of massive incarceration for drug offenses that caused California voters to endorse Proposition 36 in 2000 by a 61 percent majority. (Morris 2002) A similar initiative was passed in Arizona and a number of other states have passed or are considering similar policies. Despite all of the shortcomings of incarceration for drug offenses, by the end of 2001, 54 percent of federal prisoners and 21 percent of state prisoners were there on a drug charge. (Morris 2002) Many of them are first-time offenders serving time under a mandatory-minimum sentence. One particularly distressing example of a misplaced mandatory-minimum sentencing rule is the disparity in the federal sentencing guidelines (based on the mandatory-minimum provisions of the Anti-Drug Abuse Act of 1986) for crack compared to powder cocaine. A person gets a five-year mandatory-minimum sentence if convicted for dealing with 500 grams of powder and would receive the same sentence for only five grams of crack. (Morris 2002) What makes this 100:1 disparity particularly troublesome is that crack markets are operated predominantly by blacks and cocaine markets are operated primarily by whites and Hispanics. Thus, this stark difference conveys a strong sense of racial discrimination and represents a profound challenge to the legitimacy of the criminal justice system. The rationale for the original disparity may have been attributed to differences in the violence associated with the marketing of these respective drugs at the time of initial enactment in the mid-1980s, when crack was a relatively new illegal drug and had engendered vigorous competition in the street markets. Those differences, however, have largely diminished as a result of changes in the nature of the markets as the crack markets have matured and as the demand by new users has declined considerably. Certainly the nature of the markets has been much more relevant than any differences between the drugs in terms of their chemical composition or their pharmacological effects. (Schlosser 2003) The evolution of the crack markets has resulted in a significantly lower level of violence today than that which characterized their early years. Also, it seems much more rational to use sentencing enhancements to punish those individuals who use violence regardless of the drug they are dealing with than to base the sentencing difference on the chemical itself. Similarly, enhancements should be considered to account for an offender's role in the distribution hierarchy; if that were done, then federal crack offenders would be treated even more leniently than powder-cocaine offenders, since the former are far more often low-level street dealers than the “king pins” at whom federal legislation is ostensibly targeted. (Stone 2001) The latest weapon in the armamentarium of those intent on greater use of incarceration is the ”Three Strikes and You're Out“ laws. The first of these was passed by public referendum in Washington State in 1993, subsequently in California and a large number of other states. A threestrikes provision was also included in the federal Violent Crime Control and Law Enforcement Act of 1994. (Morris 2002) Variants of this principle (mandatory life imprisonment without parole for conviction of a third ”strike“—a third conviction for one of a set of specified serious offenses) somehow built on the presumption that this baseball metaphor was particularly appropriate for sentencing policy. It is not clear to what extent the three-strikes laws are intended to achieve retribution or crime control.If the latter, it would be through deterrence and incapacitation. For either, this is a relatively inefficient means for achieving those effects. If focused on the most serious violent felonies, the offender with two prior violent convictions should already be facing a long sentence, and it is not clear how much more deterrent effect will be added by proposing that this be extended to a life sentence. In terms of incapacitation, the laws keep people in prison well after their active criminal careers have ended—very likely by age 50, almost certainly by age 60. (Morris 2002) If the choice arises about whom to release — a currently violent offender not under such a mandatory law and an aging one imprisoned under a three-strikes law—the system would have to release the currently serious offender, obviously a choice that contradicts any crime control objective. Once such laws are passed, even when restricted to the most serious offenses, they then provide a platform for expanding the scope of offenses that can be counted as ”strikes.“ (Schlosser 2003) Indeed, the federal law initially was confined to serious violent felonies, but ended up permitting drug convictions to be counted as one of the strikes. Much of the growth in the prison populations since 1980 is attributable to the increase in drug offenders, who comprised only about 6 percent of prison populations in 1979. The adult incarceration rate for drugs increased by a factor of 10 from 1980 to 1996, far in excess of any of the other crime types contributing to prison population. (Morris 2002) Aside from drug offenses, there has been a general upward trend in the general sanction level for the five other crime types that are important for prison: murder, robbery, burglary, aggravated assault, and sexual assault. Blumstein and Beck (1999) analyzed the factors contributing to this incarceration growth. The candidate explanations they considered were 1) more crime, (2) more arrests per crime, (3) more commitments to prison per arrest, and (4) longer time served, including time served on parole recommitment. It turns out that none of the growth was attributable to more crime and there was no change over this period in arrests per crime. The growth was entirely attributable to a growth in punitiveness, about equally to growth in prison commitments per arrest (an indication of tougher prosecution or judicial sentencing) and to longer time served (an indication of longer sentences, elimination of parole or later parole release, or greater readiness to recommit parolees to prison for either technical violations or new crimes) (Blumstein and Beck 1999). One of the most important recent sources of growth in prison population is the level of recommitment of parolees. Parole boards have received the same political message that they too ought to become tougher to keep up with the political tenor of the times. Indeed, they have been more aggressive in delaying release decisions where they still had that option, in performing urinalysis on parolees, and in making recommitments for parole violations. Another significant contributor to the growth in prison populations through the 1980s was the same demographic shift that contributed to the growth of crimes in the 1960s and 1970s—the baby boomers. (Stone 2001) Since the peak age for crime occurs in the late teens, and the peak age for imprisonment is in the early thirties, the population bulge associated with that generation was expected to impact the prison population about a decade later than it impacted the crime rates.
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(Morris 2002) The impact of that demographic shift on prison populations was relatively small, however, compared to the shift associated with the drug war, and in the same order of magnitude as the shifts in the punishment of the more common street crimes. In any event, those effects should have passed their peak by the early 1990s as the baby boomers passed out of the high imprisonment ages, and should already have begun working the other way, waiting for the arrival of the echo boom following the demographic trough associated with the 1976 cohort, the smallest cohort in the US population under age 50. (Morris 2002) The growth of incarceration over the past 25 years has been a consequence of public concern about the widespread use of drugs, especially by children, the growing crime rate exacerbated by the growing attention to it by the media, the political appeal of being tough on crime and the corresponding concern about being seen as “soft” on crime. (Morris 2002) The steady decline of crime rates from a 1993 peak to a plateau in 2000, resulting in rates that had not been seen since the mid-1960s, certainly contributed to an easing of the pressure on politicians to do whatever they could, and increasing sentences always seemed to “work,” not necessarily in reducing crime, but in alleviating the pressure and displaying responsiveness. There has also been an easing of the drug problem, particularly in the demand for crack, the drug whose markets have been most marked by violence in the past, so the insistence on incarceration for drug offenders has also diminished. The result of the crime decline would probably not be very effective without some direct pressure to reduce corrections costs, which rose in direct proportion to prison population, augmented by inflation. That pressure has been provided by the serious revenue shortfalls seen in all the states in their 2002 budgets, with a reasonable prospect of things getting worse in the future. For example, California was projecting a $35 billion deficit in its $63 billion budget (Broder 2003). One estimate for the fiscal year 2004 is that all the states collectively will have deficits of between $61 and 85 billion, representing 13 to 18 percent of the total state budgets (Lav and Johnson 2002). Corrections costs, which have been growing without significant concern for fiscal implications, now find themselves on the list of reasonable candidates for reduction. States are proposing a variety of approaches for earlier release and treatment in the community of nonviolent offenders. Perhaps one of the most striking approaches to introducing rationality is that embedded in California's Proposition 36, which requires treatment before incarceration for a defined group of drug offenders. This approach is being picked up by a number of other states. It represents not only a more rational response to the current drug problem, where the resilient market and its recruitment largely negate the incapacitative and deterrent effects of incarceration. Treatment efforts have been shown to reduce drug abuse, at least during the period of treatment. This approach also represents a significant potential for cost savings, since treatment costs are much less than incarceration costs. The most direct indication of the approach to reconsidering the growth of incarceration is the fact that the incarceration rate in state prisons at the end of 2001 dropped for the first time in more than two decades—it dropped from 425 in 2000 to 422 in 2001 (Harrison and Beck 2002) This was a consequence of prison-population reductions in 10 states, including some of the larger states like New York, New Jersey, and Texas. This reduction was not matched by the federal prison system, which continued its steady increase, with the incarceration rate in federal prisons increasing from 44 to 48. As a result, the total prison incarceration rate was essentially steady, with only a slight increase from 469 to 470. (Morris 2002) One approach that might be pursued to reverse the seemingly unbounded growth in punitiveness is to find means to enhance public education so that the naive belief that more punishment will lead to less crime, regardless of the social dynamics of the particular crime (e.g., the substitution in drug markets) or the offenders on whom the punishment is targeted (e.g., offenders with relatively low disutility for prison), becomes less prevalent. Somehow, the subtleties of those differences have not been able to get through the emotion and the rhetoric of sanction policy. It does appear that too much of the policy debate is from the perspectives of the ideological poles—arguing broadly for more incarceration at one extreme (with no concern for where it can be most effectively applied) or, at the other extreme, against incarceration as a broad generality rather than with a sharp focus on where it is least effective and most wasteful or even harmful. In economic policy, in contrast, there still remain sharp ideological differences between the left and the right, but there has emerged a level of theoretical agreement and strong empirical observations that have brought the poles much closer together than has been the case in criminal justice policy. In part, this is attributable to the much more backward state of empirically grounded theory in criminology, which could force resolution on at least some aspects of the debate. A major rise in the level of support for research in the whole area of crime and crime control through the National Institute of Justice (whose annual discretionary budget has hovered at about $25 million for many years—in marked contrast to the $20 billion for the National Institutes of Health) could help move that process forward. (Morris 2002) In policy terms, one could argue for more widespread use of sentencing commissions as appropriate instruments for generating at least some degree of coherence in sentencing structures. Such commissions can represent an antidote to the passionate response to a particularly heinous crime or the mood of the moment and could sometimes serve as an inhibitor of the frequent legislative response of mandatory-minimum sentences. That approach is limited, however, because even sentencing commissions have to respond politically (in most cases, their guidelines must be approved by the legislature), but they have a degree of insulation from the political pressures compared to legislatures. Sentencing commissions that operate under capacity constraints (requiring their sentencing structure to be compatible with the available or committed prison capacity) make even more sense because the capacity constraint imposes an important discipline on the sentencing schedule; even the most conscientious sentencing commissions, however, are sometimes forced to ignore the constraint by the back pressure they get from the legislature, which must approve the guidelines. It is rare that a sentencing commission hears a demand for reduction of any sentences.
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