The US prison system is famous for its notorious inefficiency. While not being the largest nation in the world, America has the largest prisoner population, surpassing countries such as India, Russia, and China in both inmate population rates and numbers of inmates per 100,000 people. As it stands, there are over 2,100,000 incarcerated prisoners, with over 7 million being supervised as part of their probation period (World Prison Brief, 2015). According to McLaughlin, Pettus-Davis, Brown, Veeh, and Renn (2016), the total burden on the US economy for maintaining the prison system, including the social costs, exceeds 1 trillion dollars a year. US prison population began growing exponentially ever since the adoption of the so-called “War on Drugs” policy, declared by President Nixon in 1971, which was an attempt to curb the flow of drugs flowing into the country through the Mexican border. While this effort proved to be a failure on its own, it also significantly contributed to the increase of prisoner population in the US. As it stands, the number of prisoners in the US in 2017 is ten times as much when compared to pre -1971, while the overall population rates have increased only by a third. Half of these prisoners (51%) are jailed for non-violent offenses (World Prison Brief, 2015). The existing number of prisons is not enough to hold and adequately maintain its numerous population. Many of them are overcrowded.
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One of the reasons for prison overcrowding and their failure to prevent crime and reintegrate former convicts into the society lies in inefficient sentencing practices. Due to every state having its own jurisdictions and policies in regards to sentencing, there is more than a single sentencing model practiced in the US. (Zhang, Zhang, & Vaughn, 2009). The purpose of this paper is to prove that in the case with non-violent crimes, determinate sentencing does not reduce crime, encourages social isolation upon release, increases chances of the transformation of a relatively benign inmate into a mature criminal, and causes overcrowding in prisons.
Modern law dictionaries define a determinate prison sentence as a sentence that is defined in a code of law and cannot be discretionarily changed by the judge, the parole board, or any government agency based on any kind of mitigating circumstances. In modern US practice, minimum determinate sentences exist for certain crimes such as murder, rape, and other kinds of criminal activities deemed dangerous to the society.
History of Determinate Sentencing
Historically, judicial systems around the world practiced a raw form of indeterminate sentencing, with judges having wide discretional authorities over what punishment a criminal should suffer for their crimes. This was motivated by the fact that early states and governments lacked a comprehensive code of law. This practice, however, entailed a great potential for corruption and abuse, as some criminals were able to use their money and connections in order to mitigate punishment, while the rest were left to face exorbitant punishments for even minor offenses. Determinate sentencing was first theorized in the late 18th century by Cesare Bonesana-Beccaria – an Italian criminologist and one of the great philosophers of the Age of Enlightenment (Schmalleger& Smykla, 2011).
Beccaria argued that in order for a judicial system to be effective in deterring potential crimes from happening, the punishment should be certain, swift, and severe (Schmalleger& Smykla, 2011). He advocated determinate sentencing as a fair justice system, as it would not discriminate between criminals based on their social stature, wealth, connection, and color – punishment for a particular crime were to be one for all.
In the US, gradual changes from indeterminate sentencing with shorter sentences for lesser crimes towards longer sentences have started in the mid-1980s, four years after the announcement of President Nixon’s “War on Drugs,” as a deterrent for future crime. Although there was no determinate sentencing for drug-related crimes, such as use and distribution of drugs, the prosecutors were required to artificially push for highest possible sentences, which, in turn, became the new standard for mandatory-minimum sentencing. As Attorney General Eric Holder stated, “For years prior to this administration, federal prosecutors were not only encouraged-but-required- to always seek the most severe prison sentence possible for all drug cases, no matter the relative risk they posed to public safety.” (DOJ, 2015, para. 3).
Goals and Purposes of Determinate Sentencing
Determinate sentencing has three important goals in mind:
- Crime deterrent. Determinate sentencing seeks to prevent crime by striking fear of potential sentence into the hearts of would-be criminals. The idea behind the infamous three-strike system that is implemented in the US is that the punishment for consecutive crimes is greatly increased in order to discourage any repetitive felonious behavior.
- Incapacitation of the criminal in order to protect the society. The purpose of determinate sentencing is not so much as to help reform the convict and reintegrate him or her back into the society, but rather to protect the society by isolating a dangerous element for a long period of time.
- Fairness and equality. According to Cesare Beccaria’s views of determinate sentencing, the presence of a fixed flat punishment time for criminals would help prevent abuse of discretion and power by the judges (Schmalleger& Smykla, 2011).
Why Determinate Sentencing does not always Work
Although determinate sentencing is a long-standing practice in numerous courts around the world, its paradigm in itself possesses many flaws that take a great toll on the American prison system and on the society in general. In order to understand these effects, we need to look at them from not only the perspective of justice, but also from economic, societal, and long-term perspectives.
One of the biggest contradictions with determinate sentencing is that it offers a solution to a criminal problem in short-term perspective, but does not consider the long-term perspective. Advocates of long sentences for even the slightest of offenses usually do not provide answers for what to do with these prisoners after they are released. It poses a significant problem to the society. Due to determinate sentencing and current minimum sentence practices for non-violent crimes, long-term prisoners spend 10-25 years in prison, isolated from the rest of the world. This causes an atrophy of many social and marketable skills as well as leaves a permanent mark on the prisoner’s reputation (Moran, 2012). These factors, combined together, make it extremely hard for prisoners to undergo rehabilitation and reintegration into the society. Poverty, joblessness, and social labeling often force former prisoners back into crime. According to Berg and Huebner (2011), more than 66% of released prisoners return to a life of crime, and over a half of them will serve another sentence. This factor greatly contributes to prisoner overcrowding, as prisons are released back into the society only to be taken in a short time after.
Another issue that arises from determinate sentencing comes with the impossibility of receiving sentence reduction or parole. As it stands, prisons are enclosed and potentially hostile environments for the guards and the inmates alike. One of the greatest motivators for prisoners to behave and engage in productive activities revolves around having a chance of reducing sentences and receiving a parole for good behavior. Naturally, with determinate sentencing and less room for reducing prison sentences, this factor is effectively removed from prison life, thus giving prison authorities fewer tools in prisoner control and motivation. A study conducted by Bales and Miller (2012) analyzed 305,228 prisoners in Florida over the period of before and after 1995 when determinate sentencing started to replace indeterminate sentencing, and all prisoners were forced to serve at least 85% of their term without parole. According to the researchers, the introduction of this policy correlated with an increase in prisoner misbehavior and a rise in inmate violence. Many cases of violence warranted a sentence prolongation for all members involved in acts of violence and misbehavior, thus only adding to prison overcrowding, as inmates who would have been free after serving their sentence were forced to stay in prison for a longer period of time.
Determinate sentencing in many US states does not take various mitigating circumstances into consideration, which could otherwise play a part in reducing potential prisoner sentence (Aharonson, 2013). These mitigating circumstances include the psychological profile of the prisoner, family status, the circumstances behind the offense, and other potential factors that have the potential of assessing the prisoner’s level of danger for the society and potential for re-education and recovery. As a result, a criminal found guilty of killing a person in cold blood has the potential of receiving the same sentence as a storage worker who accidentally dropped a box on a fellow worker. This example is also applied to many drug-related scenarios, where drug users are punished just as hard as drug dealers, despite posing no immediate threat to the society and being perfectly eligible for rehabilitation rather than imprisonment (Aharonson, 2013). Duly unjust sentences are some of the causes of prison overcrowding in the USA.
Lastly, long sentences for relatively minor crimes that pose no danger to the society tend to backfire by turning relatively benign citizens with no criminal inclinations into actual criminals, while at the same time transforming beginner criminals into hardcore convicts. Long-term contact and affiliation with actual criminals convicted of theft, murder, and other heinous crimes causes experience sharing between inmates and gradual vilification of the character. Softer and more malleable personalities are likely to be hardened in the shape and image of more forceful convicts in order to achieve status within the existing prison system. As a result, instead of preventing crime in the long run, prisons tend to teach non-violent offenders and first-time offenders on how to be criminals. Bradley et al. (2017) refer to prisons as “schools of crime,” stating that high rates of recidivism in America can be partially attributed to prisons failing to promote positive experiences while shaping incarcerated citizens into criminals.
The Three-Strike Laws, Zero-Tolerance Policies, and Minimum Sentencing
In the 1990s, USA went through the so-called “tough on crime” period, during which zero-tolerance policies, minimum sentencing, and the three-strike laws were introduced. The three-strike system was devised in order to protect the society from career criminals by increasing punishment for consecutive crimes. This system is implemented in various countries around the world, namely in Europe. According to Albanese (2014), when the three-strike laws were implemented in 1993, they saw moderate success in reducing crime by 25 to 46 percent. By the end of 1995, three-strike laws are implemented in 27 states.
The general justification behind the three-strike system is based on a theory that career criminals commit the majority of crimes. The best form of protection against career criminals is incarceration. Therefore, it is necessary to lock up these antisocial elements for a long time instead of wasting time and resources on trying to reform them.
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However, the statistics in regards to efficiency of the three-strike system should be taken skeptically. The period between 1993-1995 is well into the “War on Drugs” timeline, meaning that the majority of counted felonies are related to drug consumption (Sutton, 2013). The problem with the three-strike system is that it is generally implemented against any kind of habitual felony, even that which does not endanger the society. At the same time, it greatly contributes to prison overcrowding, as some of the relatively harmless felons are locked in for life, and take up to 70,000 dollars of taxpayer money per year.
One of the prime examples of three-strike laws inadequacy comes from the case of Rummel v. Estelle (1980). This case is notorious for US juridical practice and showcases how unjust the three-strike system can be towards a felon. In this case, the Supreme Court upheld a life sentence for a felon, whose three offenses, in sum, involved 224.35$ of fraudulent activity. This case is commonly used in Texan juridical practices as a proportionality test. Naturally, due to how disproportionate the punishment was in comparison to the crime, no subsequent charge is considered too excessive.
Determinate sentencing, in combination with the three-strike laws, makes the third strike extremely important for both the judges and the defendants alike. As the stakes are high, there is no room for judicial errors. A mistake during the court session can potentially send an otherwise innocent person for a lifetime in prison, especially considering the two previous crimes could have been insignificant, as demonstrated by the Rummel v. Estelle case.
Is Indeterminate Sentencing the Answer?
While the subject of reforming the American justice system has been going on for a long while, since at least 1980s, there are several reasons why the promotion and implementation of progressive views on crime and punishment have been slow. Indeterminate sentencing was the governing practice in American jurisprudence until the 1970s, and the reasons for its gradual removal persist even today.
One of the biggest reasons indeterminate sentencing faces criticism is because the society, in general, does not care about the well-being and reintegration of felons. According to Aharonson (2013), slogans like “get tough on crime,” “three strikes and you’re out,” “adult time for adult crime,” and others, are generally popular among many law-abiding citizens, who tend to harbor a set of biases and prejudices towards felons and do not believe in the effectiveness of re-education and reintegration (Craig, Gannon, & Dixon, 2013).
Another important reason why indeterminate sentencing was largely abolished is due to the political considerations behind it. As systematic injustices towards Afro-American citizens has always been present in the US legal system, many Afro-American communities have pushed for determinate sentencing as means of equality between black and white prisoners. Therefore, many political representatives and community leaders see indeterminate sentencing as a way to increase punishment for black felons while letting white criminals receive reduced sentences.
One of the reasons why the current flaws within the prison system are not resolved in due haste is because of a powerful lobby protecting the status quo. According to Cohen (2015), the private prison industry thrives on the large amounts of prisoners that the federal prison system cannot handle or take in, meaning that any laws or procedures aimed to reduce incarceration times and the number of prisoners held in custody directly hurts their profits.
The last reason why many oppose indeterminate sentencing lies in legal ethics. Determinate sentencing stands behind equality of punishment for all, regardless of connections, social standing, wealth, or race. There are legitimate concerns that without these safeguards, increased judge discretion would lead to corruption and abuse of authority. Thus, indeterminate sentencing cannot be considered a panacea, as it comes with its own set of problems and injustices.
Potential Solutions to Prison Overcrowding
While increasing prison expenditures and constructing additional prisons would be welcomed by the private prison lobby, it does not provide a long-term solution to the problem, as prisons remain notoriously inefficient at preventing crime and reforming convicts to be reintegrated into the society. With America continuing to fall into the pit of internal and international debt, additional prison expenses are among those that the country could not afford. Researches into the matter offer different opinions and suggestions on prison and judicial code reforms.
According to Weisberg (2016), one of the major mechanisms in downsizing prisons would involve replacement of incarceration penalties with re-education and public service penalties. The majority of prisoners convicted of a drug-related felony (namely users, not distributors) would be eligible for this sort of activity, as they do not directly pose a threat to the society.
Naturally, the implementation of such a mechanism is impossible without changes in current determinate sentencing practices. A compromise between determinate and indeterminate sentencing must be achieved, at least in regards to criminals that do not pose a threat to the society. Determinate sentencing should be applied to cases of murder, burglary, assault, rape, drug dealing, and other crimes that pose a danger to the society, whereas indeterminate sentencing should be applied to lesser offenses.
In order for this transformation to occur, the adoption of a presumptive model must occur, which would list a normal punishment for particular crimes, with aggravating or mitigating circumstances (Bowman, 2017). However, as the author of the article remarks, the political issues involved in the implementation of the new system must also be addressed. A mechanism for preventing discretion abuse among judges and the elimination of racism inclinations from the justice system is required in order for the proposed interventions to be successful.
Lastly, the ethics of our prison system are to be considered. The purposes are to be clearly outlined – a prison system should be an instrument of preventing crime in short and long-term, and serve as an effective indirect deterrent for crime, instead of exacerbating the problem. The prison system is to become an instrument of justice, not an instrument of vengeance for the sake of vengeance, as vengeance is a matter that should never be considered for a halfway measure. As it stands, justice as vengeance violates many of the core rights of the defendant, meaning that it cannot serve as a guiding principle for a justice system.
As this paper had demonstrated, determinate sentencing practices cause a direct increase in prison population in numerous ways, directly and indirectly. While promoting excessive punishments that keep relatively benign felons behind bars for extended periods of time, determinate sentencing also affects prison population discipline and has an effect on prisoner rehabilitation and recidivism rates increase. In so doing, it perpetuates crime and is, ultimately, self-defeating. However, it must be acknowledged that the current system came to be because of the deficiencies of the indeterminate sentencing system that came under criticism for failing to address certain ethical, professional, and political issues that came along with it. Promoting and facilitating change to the current system would be impossible unless all of the mentioned concerns are addressed and effectively dealt with. However, the process is slowly moving forward. Presumptive sentencing is a viable alternative to both determinate and indeterminate sentencing, as it provides the necessary guidelines for judges to rely on when making their decisions, while at the same time giving room for discretion in regards to mitigating and aggravating circumstances pertaining the crime. What is certain, however, is that the War on Drugs, which, in combination with three-strike laws and determinate sentencing, caused the ten-fold increase in prison population, must end. Ceasing the practice of long-term incarceration against minor and non-violent offenders is the first step to a better, more rational, more efficient, and more financially sound prison and justice system.
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