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date: 25 May 2019

Introduction Sentencing and Corrections: Overlapping and Inseparable Subjects

Abstract and Keywords

This article serves as an introduction to the concepts of sentencing and corrections, which are two inseparable subject areas. Sentencing is a legal process where criminal sanctions are authorized and imposed in individual cases following criminal convictions, while corrections deals with the implementation, management, and evaluation of criminal sentences after they are handed down. This article presents data on the length of incarceration of inmates per decade, as well as the prison rates of white and black inmates. It also considers efforts that has been made in reducing crime. The rest of the article summarizes work that has been carried out that deals with sentencing and corrections in the United States, including mass incarceration and prison life.

Keywords: sentencing, corrections, criminal sanctions, criminal convictions, incarceration, prison rates, reducing crime, prison life

The volume that you hold in your hands is the comprehensive, multidisciplinary Oxford Handbook of Sentencing and Corrections. “Sentencing,” defined narrowly, is the legal process by which criminal sanctions are authorized and imposed in individual cases following criminal convictions. “Corrections,” also conceived narrowly, deals with the implementation, administration, and evaluation of criminal sentences after they are handed down. It is a mistake to insist upon myopic distinctions between the two fields, however. From a policy viewpoint, the two subject areas are inseparable. Sentencing judges have reason to hope, if not expect, that the theories and policies behind their sentencing decisions will be pursued during the corrections phase. A judicial sentence is a mere abstraction until given effect in the correctional context. Continuity across the two stages cannot merely be assumed, but requires coordinating effort. From a wide angle spanning both sentencing and corrections, it is evident that the determination of penalty in an individual case is almost never concluded in the courtroom. The sentence as experienced by an offender will depend on many later decisions, the availability and quality of correctional and treatment resources, the conditions of life and governance strategies of individual prisons and jails, and the tilt between enforcement and support philosophies in probation and parole. Spreading our vision more broadly still, sentencing and corrections are subject matters that live on even after criminal penalties are fully executed in individual (p. 4) cases, and offenders are released from the jurisdiction of the state. From a societal perspective, the downstream effects of sentences are what matter most to the public, including crime avoidance, victim and community restoration, and public confidence that the justice system acts with fairness, consistency, and proportionality when it punishes individual human beings.

This handbook examines the intertwined and multilayered fields of American sentencing and corrections from global and historical viewpoints, from theoretical and policy perspectives, and with close attention to many problem-specific arenas. The goals throughout are to present state-of-the art knowledge in specific subject areas, to investigate current practices, and to explore the implications of differing approaches wherever possible. All of our contributors have aspired to bridge the gap between research and policy—and were chosen because of their distinguished track records in doing so in their past scholarship. Individual chapters reflect expertise and source materials from multiple fields including criminology, law, sociology, psychology, public policy, economics, political science, history, and cultural theory. One narrative thread of the handbook is that problems of sentencing and corrections, writ large, cannot be addressed effectively with the toolbox of any one discipline.

The need for rigor and ambition in these fields has never been greater. It is now axiomatic to say that America’s sentencing and corrections systems are in crisis. The weakening of the “rehabilitative ideal” and the shift toward more punitive practices in the 1970s through the 1990s led to an expansion of America’s corrections populations unprecedented in this country, other parts of the world, or any historical time period. When the prison population count was released for year-end 2009, it revealed that the total number of Americans behind bars increased for the 37th consecutive year, touching off a fresh round of grim editorializing and national soul searching. America’s prisons and jails now confine more than 2.3 million individuals on any given day—roughly one in every 100 adults—giving the United States the highest incarceration rate of any nation in the world. As a proportion of its population, the United States incarcerates five times more people than Britain, nine times more than Germany, and 12 times more than Japan (Bureau of Justice Statistics 2010; Walmsey 2009).

Introduction Sentencing and Corrections: Overlapping and Inseparable SubjectsClick to view larger

Figure 0.1. Person-Years of Incarceration by Decade in Millions. 1960s– (Projected).

Sources: Sourcebook of Criminal Justice Statistics Online, Adults on Probation, in Jail or Prison, and on Parole, United States, 1980–2009, Table 6.1.2009 (2011), http://www.albany.edu/sourcebook/csv/t612009.csv (prison and jail counts for 1980 through 2009); Margaret Werner Cahalan, Bureau of Justice Statistics, Historical Corrections Statistics in the United States, 1850–1984, at 76, tabIe 4–l (1986).

Prison and jail statistics are almost always recited in terms of snapshot, one-day counts. This conventional way of thinking misses the reality that the essential attribute of confinement as a criminal sanction is its duration—its reliance upon the dimension of time as a means to achieve punitive or consequential effect. Thoreau wrote that “the cost of a thing is the amount of … life which is required to be exchanged for it” (1854, 31). Pursuing this insight, figure 0.1 estimates the number of “person-years” of confinement meted out by decade in U.S. prison and jails since the 1960s (each unit is one year served by one inmate). The figure ends with a projection of the number of person-years that will be served across the decade 2010–2019, on the assumption that nationwide incarceration rates will remain stable at 2009 levels.

One thing that figure 0.1 demonstrates is that zero incarceration growth (were it to be achieved) upon the base of 2009 prison and jail populations is hardly the (p. 5) stuff of pendulum swings. Social scientists and armchair statisticians alike are wont to view the absence of change as a non-event. But the persistence of historically high incarceration rates is an aggressive policy to import into the future. As the sixth bar in figure 0.1 reveals, 2010–2019 will be the most punitive decade in U.S. history—unless incarceration populations fall into decline. Without dramatic decreases, the current decade would still enjoy the distinction of being the second most punitive decade in American history.

Introduction Sentencing and Corrections: Overlapping and Inseparable SubjectsClick to view larger

Figure 0.2. Prison Rates, White and Black Males, 1880 to 2009.

Sources: Bureau of Justice Statistics, Prisoners in 2009 (2010), p. 28, appendix table 14; BJS, Prisoners in 2000 (2001), p. 11, table 15; Bureau of Justice Statistics, Correctional Populations in the United States, 1995 (1997), p. 8, tables 1.8 and 1.9 (for 1990); Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 1850–1984 (Washington, DC: GPO, 1986), p. 34, table 3–6; p. 65, table 3–31; Margaret Werner Cahalan, “Trends in Incarceration in the United States since 1880: A Summary of Reported Rates and the Distribution of Offenses,” Crime and Delinquency 25 (1979), p. 40, table 11; U.S. Census Bureau, Census of Population (various years).

Concern over mass confinement is inextricably bound up in questions of distributive justice. Racial and ethnic disparities in U.S. incarcerated populations are severe. Figure 0.2 compares white male and black male prison rates from 1880 to 2009. It is evident from these data that there has never been a meaningful civil rights movement in American prison policy. Since Reconstruction, black-white disparities in prison rates have always been pronounced, and they have generally grown over the past 130 years.1 In 2009, an estimated 65 percent of all inmates in America’s prisons and jails were either African American or Hispanic. Compared with a white male incarceration rate of 487 per 100,000 nationwide, the black male rate was 3,119 and the Hispanic male rate was 1,193 (Bureau of Justice Statistics 2010: app. table 14). This translates into a “disparity ratio” for black and white males of 6.4 to one, and a ratio of 2.4 to one for Hispanic and white males.

For the various dates shown on the chart, where reasonably reliable prison counts are available, the black-white disparity ratio went from 2.8:1 (1880), to 3.2:1 (1890), to 3.9:1 (1910), to 4.3:1 (1923), to 4.8:1 (1950), to 5.2:1 (1960), to 5.7:1 (1970), to 6.9:1 (1980), to 7:1 (1990), to 7.7:1 (2000), and a decline to 6.4:1 in 2009. While the recent decline in the disparity ratio is somewhat heartening, it is partly due to a (p. 6) change in the way Hispanics and African Americans are counted in the national statistics, and likely overstates the change for the better (Tonry 2011, 32).

Yet to focus on disparity ratios misses most of the painful truth. The generally increasing ratios, worrisome as they are, grossly understate the impact of incarceration upon African American communitites. Not only has the black share of the imprisonment pie been going up over most decades, but, as noted in figure 0.1, the entire pie has been expanding even faster. Even if we accept that black-male-white-male disparities fell off from 2000 to 2009, the absolute black male imprisonment rate remains at nearly an all-time high—and roughly three times the rate of 1980.

Although there is much tragedy in the history of American criminal justice, and a sense that the lessons of the past are too often ignored, the most recent prison census signaled a possible turning point: the population of the nation’s state prisons (excluding the federal system), which house more than 90 percent of all convicted felony offenders, decreased by nearly 3,000 inmates (down 0.2 percent). This was the first decline in the state prison population since 1972. In California, which has the nation’s largest state prison system, with nearly 170,000 men and women incarcerated, the prison population fell for the first time in 38 years, and the Supreme Court in 2011 upheld an order for further significant reductions (Brown v. Plata). Texas, also historically an incarceration powerhouse, has likewise seen prison population declines, and has even had the novel experience of closing one of its prisons (Fabelo 2010; Ward 2011). The national prison population—including those held in federal facilities—grew at the slowest rate (0.2 percent) in the last decade (Bureau of Justice Statistics 2010). Some observers believe that we may be witnessing the beginning of the end of America’s long commitment to what some critics call “mass incarceration” (American Civil Liberties Union 2011; Simon, chapter 1 of this volume).

(p. 7) A large part of the downturn is the fact that cash-strapped states are looking for ways to save money, and reducing the number of prisoners has a positive effect on the bottom line (e.g., Vera Institute of Justice 2010). Prisons are overcrowded and corrections absorbs increasing and significant resources—more than $60 billion in 2009. Second only to Medicaid, corrections has become the fastest growing general fund expenditure in the United States (Pew Center on the States 2009). The high cost to taxpayers is unsustainable, especially during times of economic instability. And despite the vast and increasing investment, the national recidivism rate remains high and virtually unchanged, with about half of released prisoners returning to jail or prison within three years (Bureau of Justice Statistics 2002). No one is surprised that most ex-prisoners reoffend. After all, most of those released from prison have serious social, medical, or mental-illness problems, and most of their needs will have gone unaddressed while they were in prison. Prisoners remain largely uneducated, unskilled, and usually without solid family support—and now they have the added stigma of a prison record and the distrust and fear that it inevitably elicits (Petersilia 2003).

The exceptional severity of American criminal justice is no longer an exclusively “liberal” issue. As the conservative editors of The Economist magazine declared, “No other rich country is nearly as punitive as the Land of the Free” (2010, 13). Prominent Republicans Newt Gingrich and Pat Nolan, on behalf of a coalition called “Right on Crime,” have come to the view that, “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential” (Gingrich and Nolan 2011).

Budget cutters may leap at the chance to reduce corrections budgets, and liberal critics of “mass incarceration” may approve of any move that brings prison populations down, but all of the current flux will prove counterproductive if we act without giving serious thought to how we deal with the offenders who are convicted, sentenced, and eventually released. Progress in the short term is easily lost. Until recently, for example, Kansas appeared to be making great strides in innovative prison policy. In 2007, the state legislature increased funding to a range of reentry programs, including education, drug treatment, and subsidized housing. The approach appeared to work: the number of ex-offenders returning to prison dropped by 16 percent between 2007 and 2009. But then came the economic crisis and cutbacks in effective programming. According to Pat Colloton, a Republican member of the state’s House of Representatives, recidivism rates quickly spiked. Kansas is back where it started from in 2007 (Yoder 2010).

To avoid throwing away much of the progress we have made in reducing crime, it is more imperative than ever to pursue alternatives to prison and new ways to ease inmates’ reentry into civilian life. The good news is that after decades of false starts, researchers have finally begun to identify the things that can make a difference in at least some cases. Advances in the science of behavior change, the development of more accurate risk assessments, public support for prison alternatives, advances in supervision technology, strengthening of community supervision and reentry programs, and rethinking the application of the death penalty are all leading to some (p. 8) lessening of the earlier political demagoguery around crime policy. We have also recently begun to see that the public is less passionately in favor of prison and long sentences as solutions to the crime problem, especially because we now have less of a crime problem.

So how do we move forward? We have assembled the most gifted and accomplished scholars working in the fields of sentencing and corrections today, and their chapters discuss the large contextual issues of American punishment policy, the applied theories put to work in real-world settings, the institutional and procedural frameworks for penalty decisions, corrections agency operations and sanctions, the characteristics and needs of correctional populations, and the scientific literature identifying effective programs. Some of the authors have also written about their firsthand experiences of incarceration and release. The contributors provide a rich array of scholarly and practitioner insights into the potential and challenges of reforming American sentencing and corrections.

The first several chapters deal with macro-scale realities of American sentencing and corrections in the twenty-first century, including the nation’s vast investment in prisons and jails, the appalling racial and ethnic disparities in criminal punishment, the proliferation of non-criminal or “collateral” consequences of contact with the justice system, and the rising importance of crime victims in the determination of sentences and the lengths of prison terms. Jonathan Simon opens this section with an examination of “mass incarceration,” perhaps the most salient feature of American criminal justice policy in the late twentieth and early twenty-first centuries. He argues that the spatial and temporal borderlines of mass incarceration are still poorly understood, and its causes will be disputed for years to come. He sees the prison explosion as a uniquely American phenomenon, albeit with many regional, state, and local differences in its particulars. In Professor Simon’s telling, the unbroken period of U.S. prison and jail expansion dating back to 1972 has reached its end in the 2010s, rendering mass confinement a “problem” to be solved—no longer anyone’s ongoing policy or political objective. He cautions, however, that high incarceration rates will probably not fall dramatically in the near future, and that “the era has begun in which policy discussion seems likely to focus on managing the pathological processes unleashed by mass incarceration.”

Alongside the sheer scale of imprisonment, the overrepresentation of racial and ethnic minorities in correctional populations is the most significant—and deplorable—reality of American criminal justice. One hundred years in the future, the twin dynamics of scale and disparity in punishment are likely to trouble historians of American criminal justice greatly—and together these subjects will pose profound questions about the moral compass of our era. Michael Tonry presents a fact-intensive indictment of the realities of race, crime, and punishment in the United States, with emphasis on the damage inflicted on African Americans by the “War on Drugs” started in the mid-1980s. Among Professor Tonry’s prescriptions, none is more important than reducing the overall size of prison populations, which would provide far greater relief to minority communities than any other measure that might realistically be placed on the table. He also proposes a number of ways to (p. 9) attack the disparate treatment of African Americans, including a reconsideration of punitive drug enforcement strategies, attacks on “racial profiling” by the police, a searching reexamination of common sentencing factors that correlate with race, and the introduction of “racial disparity impact projections … as a routine element of consideration of proposed sentencing legislation.”

An essential dimension of the expanding punitiveness of American law, but one that often goes under-noticed, is the gross accumulation of “collateral,” or non-criminal, consequences that follow convictions—and sometimes are triggered by arrests or charges that do not result in convictions. These include such things as occupational and licensing bans, exclusion from public housing, termination of parental rights, ineligibility for student loans, voter disenfranchisement, and deportation. Alec Ewald and Christopher Uggen survey the broad and thorny field of “invisible punishments,” including both legal consequences and practical impacts upon individuals, families, and communities. The combined effects of these collateral harms exceed that of the formal criminal sentence in many cases, and often endure for many years after a sentence has been served. Professors Ewald and Uggen observe that the cumulative weight of collateral consequences hinder the reentry of ex-offenders into the law-abiding community, and thus “fly in the face of theory and research on desistance from crime.”

Seasoned criminal justice professionals often observe that the increased participation of crime victims in all stages of the criminal justice process has been one of the cardinal developments of the last 30 years. Yet a balanced jurisprudence of crime victims’ role in public law has been slow to develop. Julian Roberts examines the legal settings for victims’ inputs into both the judicial sentencing and parole release processes in the United States and other common law jurisdictions. He also surveys the empirical evidence of the effects of this participation, including enhanced victim satisfaction and—perhaps—changes in official penalty decisions to respond to victim preferences. While Roberts sees both a defensible rationale and some positive outcomes associated with victims’ contributions to sentencing proceedings, he is far more critical of the commonplace practice of inviting or allowing victim input at the prison release stage. He writes that, “victim input has been shown to have an important effect on parole authorities and—if unrelated to the criteria for release—may threaten the integrity of parole decision making.”

The next several chapters deal with the underlying theories of sentencing and corrections, not as philosophical abstractions, but with a close eye toward their actual application in contemporary criminal justice systems. Richard Frase begins the sequence with an in-depth discussion of sentencing “proportionality,” or the problem of “making the punishment fit the crime.” Proportionality constraints are regularly disregarded in many U.S. jurisdictions, where drug offenders can receive harsher penalties than murderers, and “three strikes” laws can mete out 50-year prison terms (with no good time or parole) for the theft of six videotapes (Lockyer v. Andrade 2003). Professor Frase argues that proportionality can supply meaningful limits upon punitive severity, but the concept must be fleshed out in both retributive and utilitarian terms. His utilitarian “ends-benefit” and “alternative-means” forms (p. 10) of proportionality are original and important contributions to the field of sentencing theory—but are also developed to capture how real-world decision makers think about actual cases. Professor Frase surveys existing systems that exemplify the “hybrid proportionality model” he recommends, including the much-lauded Minnesota sentencing guidelines system, concluding that “[t]he application of … these proportionality constraints has allowed Minnesota to retain one of the lowest per-capita incarceration rates in the nation.”

The subject of rehabilitation theory in action is taken up by James Nolan, who evaluates the success of “therapeutic jurisprudence” in the setting of problem-solving courts such as drug courts, mental health courts, domestic violence courts, and community courts. He reviews the development of these specialty courts in the United States and other countries, and finds many fundamental differences in approach. He contrasts the enthusiasm and high utilitarian expectations (even “boosterism”) in the United States with the restraint and modest harm-reduction goals often seen in other countries. Professor Nolan cautions that, as in the high rehabilitation period of the 1960s, U.S. advocates may be overselling the successes of problem-solving courts while worrying too little about the procedural sacrifices required of defendants, and the prospects of unintended net-widening. He notes more generally that American policy makers are unfailingly eager to export their own programs and ideas, but are not equally inclined to draw upon the experience of other nations. He urges that, “Americans could perhaps do well to learn about, and perhaps follow the example of, some of the legal-cultural qualities of the other countries considered here.”

Next, Cheryl Webster and Anthony Doob mount a frontal attack on one of the mainstays of deterrence theory: that increased severity of punishments will yield greater general deterrence of criminal acts (the “deterrence through severity” or DTS thesis). DTS would seem an inarguable truth from the economic view of human behavior, because it is a raising of costs relative to benefits—and intuitive faith in DTS drives criminal justice policies in force today in a number of countries, notably the United States and Canada. Professors Webster and Doob meticulously canvass the empirical evidence, with closest attention to studies since 1990, and find a “repeated lack of support for DTS policies” demonstrated across multiple methodologies, units of analysis, types of sentencing laws, and objects of study. They urge that the same critical scrutiny applied to rehabilitation theory in the 1970s should now be brought to bear on deterrence, and write that “the continued centrality of [DTS] as a sentencing objective constitutes a false promise, contributing to a waste of resources and a reduction in the public’s confidence in the criminal justice system, while encouraging policy makers to ignore more effective crime control strategies.”

The grail of “selective incapacitation” has been part of the debate of prison policy for several decades, but became tarnished in the 1980s due to demonstrated weaknesses in prediction technology, especially when attempted in the roughshod environment of real criminal courthouses. In recent years, however, substantial improvements in the actuarial tools used to predict serious criminal behavior have once again thrust the subject forward to the cutting edge of policy discussions. As (p. 11) Christopher Slobogin observes of today’s practices, “about half the states make some use of formal risk assessment instruments in the sentencing or post-sentence process.” This number will almost certainly grow in the coming years. Professor Slobogin performs a close and skeptical examination of available risk assessment methodologies, the empirical research into their validity, and the legal and ethical issues surrounding their use. He ends in ambivalence: “Risk assessment is only likely to be sufficiently and knowably accurate if it is based on actuarial instruments, but it is only likely to avoid constitutional, justice, and fairness objections if it relies on demonstrably less accurate unstructured clinical judgment that eschews use of demographic information and other immutable traits.” He proposes several policy alternatives, including the use of risk assessment only as a prison-diversion tool (as it is currently used in Virginia), or the elimination of the consideration of risk from sentencing and corrections decisions altogether.

The most fully realized new framework for criminal sanctions to arise in the past 30 years is the restorative justice theory (or RJ), which posits that the goal of criminal sentences should be to repair the damage done to victims, families, and communities by criminal acts, and to restore the offender to a productive life. RJ seeks to engage the positive effects of personal accountability (literally in person, when offenders engage with their victims), remorse, empathy, and forgiveness. While it is an optimistic theory of human psychology and emotion, Lawrence Sherman and Heather Strang argue that RJ has been subjected to rigorous empirical testing beyond that applied to the more traditional sentencing purposes. Their survey of the relevant research (including their own famous studies) shows positive outcomes for both offenders and victims in a number of settings, and suggests that—contrary to conventional wisdom—RJ innovations may be at their most effective when used in cases of serious offending. Along with a close consideration of RJ, this chapter presents a compelling exegesis on the meaning and implementation of an “evidence-based” sensibility in sentencing and corrections.

The next four chapters focus on the processes and institutional structures for sentencing decisions in America, spanning topics from courtroom rules of procedure to the institutional design of entire sentencing systems. The pressing questions include: Who holds decisional power (or “sentencing discretion”) in a given jurisdiction, and subject to what constraints? Ronald Wright opens this section with an examination of claims that prosecutorial charging and plea-bargaining discretion is a form of sentencing power—and, indeed, that de facto prosecutorial authority eclipses that of judges to fix penalties in some sentencing systems. Professor Wright finds these assertions largely true of American legal systems, and increasingly true elsewhere in the world. Criminal case processing in the United States, he writes, has come to rely on “the methods of modern administrative government.” He complicates the picture, however, by insisting that defendants must be included as independent agents in any model of plea bargaining in action, because they possess substantial bargaining power vis-à-vis the government. He also concludes that sentencing guidelines systems tend to enlarge prosecutors’ power, but that “judicial discretion still has an important effect on the sentences imposed and served, even (p. 12) after a system adopts guidelines.” On the future policy horizon, Professor Wright argues that attempts to create external legal controls on prosecutorial discretion have proven inadequate, and that greater emphasis should be placed on the development of “internal control mechanisms,” such as “office structures that require more collaborative decisions, periodic review of the prosecutor’s work, regular training of prosecutors to enhance skills and promote consistency, and articulated office policies.”

Next, Kevin Reitz focuses upon the traditional American “indeterminate” sentencing systems, still used in roughly half the states, in which parole boards hold the lion’s share of authority over the lengths of most prison terms. While prosecutorial power is exerted at the “front end” of the case-processing chronology, parole-release discretion is concentrated at the “back end.” Professor Reitz argues that the traditional indeterminate systems have been under-studied in the last 30 years, when most researchers of systemic design have turned their attention to various sentencing “reforms,” including sentencing guidelines and “determinate” systems (that remove the parole board’s power over prison release). He finds that the traditional structures are far more diverse and complex than commonly supposed. He outlines what we currently know about these systems, and documents some of the differences across systems, but concludes that we have no basis upon which to form policy judgments of “worse” or “best” practices. He argues that a new field of “indeterminate sentencing studies” is needed to understand how best to design and administer indeterminate sentencing structures, and to inform the question of whether indeterminacy ought to remain a viable policy option for American governments.

In the late twentieth century, the sentencing guidelines model, with guidelines created by a nonpartisan sentencing commission, emerged as the major systemic alternative to the traditional U.S. indeterminate sentencing scheme. Robert Weisberg traces this movement from the seminal work of Marvin Frankel (who first proposed the sentencing commission) to the present, when roughly half of the states and the federal system now work with sentencing commissions, judicial sentencing guidelines, or both. Ironically, as Professor Weisberg points out, the federal system has been the most visible commission-guidelines system on the American scene—but also the least successful and most derided of those systems. Federal policy makers work with unique national and symbolic politics, a disorganized criminal code, and—most importantly—the absence of tight budgetary pressure on corrections that is felt by every state. By most measures, the state commission-guidelines systems have been far more successful, and certainly less controversial, than the anomalous federal system. Professor Weisberg argues that a “consensus system” among lawmakers and academics has developed at the state level over the past 30 years, and explores this theme with reference to specific systems in Minnesota, Missouri, North Carolina, Pennsylvania, Utah, and Virginia. He offers criteria for evaluation of guidelines reforms, including reductions in crime and recidivism, lowering incarceration rates, reducing racial and ethnic disparities, increasing the system’s cost-efficiency, and promoting evidence-based sentencing practices. Overall, Professor Weisberg (p. 13) concludes that the commission model “represents legislators’ commitment to restrain their own tendencies to generate politically charged and often wasteful sentencing policies and instead to treat sentencing as a regulatory matter that warrants cost-benefit rationality in the first place.”

Nancy King closes the section on legal architecture with a disturbing examination of the procedural rules that attend judicial sentencing decisions across the United States. She observes that there is a near void of constitutional law applied to criminal sentencing (other than the death penalty). Due process safeguards that the Supreme Court has recognized for criminal trials, and the constitutional requirements for capital sentencing proceedings, have seldom been extended to non-capital sentencings. For example, proof beyond a reasonable doubt is not mandated at the vast majority of sentencings—nor is any particular evidentiary standard, and the burden may even be placed on the defendant for some kinds of sentencing factors; formal rules of evidence are not in force; defendants have no right to confront witnesses against them; discovery rights are undeveloped; double jeopardy protections simply evaporate; exclusionary rules for unconstitutionally obtained evidence are inapplicable; sentencing judges need not state the reasons for their decisions; and most jurisdictions make no provision for meaningful sentence appeals. Most striking of all, perhaps, the Supreme Court has ruled that sentences in most U.S. courtrooms may be based on uncharged offenses and even crimes of which defendant has been acquitted. Professor King analyzes the relatively new constitutional holdings of Blakely v. Washington and United States v. Booker, based on the Due Process Clause and Sixth Amendment jury trial guarantee, and concludes that these cases affect only a narrow subset of the nation’s sentencing cases. The general absence of constitutional regulation, in Professor King’s telling, has had a number of important effects. Most fundamentally, sentencing process is almost entirely a sub-constitutional domain for legislatures and rule-makers. Second, great pressure has been placed on the “trial-sentencing distinction,” because legislatures may shift fact-finding from trial to sentencing in order to relieve prosecutors of the burdens affixed to guilt determinations. Third, even the weak procedural protections that exist at sentencing may be bargained away by the parties. For example, federal prosecutors routinely require defendants to waive their rights to appeal sentence in order to obtain plea agreements.

Next, the handbook offers a series of chapters on community sanctions, jails, and prisons, followed by focused discussions of assessment efforts across the correctional landscape. Professors Karol Lucken and Thomas G. Blomberg present an overview of America’s corrections system, tracing its unique history and offering observations on what led to the massive prison buildup. Interestingly, incarceration of lawbreakers was meant to be a humane alternative to the two options used at the end of the eighteenth century—corporal and capital punishment. Through work and penitence, offenders in prison would be rehabilitated and returned to society. But now, 200 years later, Lucken and Blomberg conclude, “What appeared to be true on paper was not always true in practice.” The system tried to adapt, and an assortment of prison alternatives were invented, including work release, halfway houses, (p. 14) home confinement, sex offender civil commitment, and other variously named sanctions. Today, America’s correctional system reveals a complex of strategies and mostly failed interventions, or according to the authors, “reform without change.” Lucken and Blomberg believe that the core of the problem are the inconsistencies in ideology and practice, which create a system that is not only volatile and contradictory but “regressive and oscillatory.” The burgeoning corrections system will not be controlled until these underlying systematic issues are addressed and balance is brought back to sentencing. The authors suggest that a well-balanced justice system can be achieved by better utilizing scientific and criminological knowledge.

Professor Faye Taxman’s chapter comprehensively reviews what we know about community-based correctional supervision, that subfield of corrections in which offenders are supervised and provided services outside jail and prison. Offenders on probation and parole outnumber those in prison by nearly three to one, those in jail by over seven to one. More than 7 million Americans are under some form of correctional control, and four-fifths of them are not in prison or jail; they are on probation or parole or in another community-based program. Surveying topics that are often misunderstood and neglected, Professor Taxman reviews the history, supervision conditions, programs, and recidivism rates of persons on probation and other intermediate sanctions. Here, too, the story is one of unfocused mission, ever-changing goals, and system overcrowding. Community supervision has been characterized by an increasing number of supervision conditions being placed on probationers, accompanied by greater monitoring of those conditions. Yet, the research reviewed by Taxman suggests that the value of added conditions during supervision does not seem to have a deterrent effect. And, given that increased conditions tend to result in more technical violations, the consequences for prison overcrowding have been significant. Taxman identifies a set of core principles, which if implemented correctly, can reduce recidivism. She believes that such evidence could shift the current preference for punitive policies, arguing that, “The gains from punishment are limited, whereas the gains from evidence-based community corrections systems are unlimited.”

Lieutenant Gary F. Cornelius brings a practitioner’s perspective to the wholly important and understudied subject of America’s jails. Lieutenant Cornelius, retired from the Fairfax County (Virginia) Office of the Sheriff after serving as an administrator for over 27 years in the Fairfax County Adult Detention Center, describes how local jails were developed, how they are managed in today’s overcrowded environment, and how they are struggling to deliver programming to inmates and public safety. Crowding in jails has created the same pressure-cooker effect as it does in prisons, and Lieutenant Cornelius discusses how the system has been impacted and has coped. Topics include the evolution of the mega jail, the changing nature of the inmate population and its implication for jail security, the growing importance of privatization, and how prison crowding has reduced the ability to deliver programming. Lieutenant Cornelius suggests that, due to successful litigation and national standards, jails—once the stepchild of the American corrections system—are entering a new frontier characterized by greater professionalism and leadership.

(p. 15) As the number of inmates has grown, so too has the need for strong leaders to oversee programs and regulate jail and prison conditions. George M. Camp, a seasoned correctional manager, and Professor Bert Useem, a nationally recognized scholar on prison management, write about the complex challenges of operating safe institutions. They note the importance of public support in the funding, mission, and regulation of America’s prisons, and discuss how crowding has exacerbated prison challenges. Contrary to expectations, expanding prison populations have not caused more riots. In fact, there has been a steep drop in the number of prison riots. The authors attribute the decline in prison disturbances to a more professionalized workforce, accreditation of facilities, and judicial intervention.

One domain in which many America governments fall short, and where worldwide experience may supply salutary models for reform, is the maintenance of humane conditions of life within massive prison and jail systems, and the provision of opportunities for rehabilitation to those incarcerated. Richard Harding’s chapter examines in detail the “patchwork” of mechanisms used to regulate prison conditions, comparing those in the United States and elsewhere in the world. He stresses that “the U.S. regulatory framework is almost entirely disconnected from international standards.” Instead, it relies on the relatively weak (and arguably weakening) regulatory tools of “judicial intervention on grounds of constitutional law, and prison accreditation by a private organization of corrections professionals.” In contrast, Professor Harding reports on the more rigorous prison inspectorate systems used in the United Kingdom and Western Australia, and the inspection regimes promoted by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), and the United Nation’s Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). While acknowledging that each society must find its own solutions, Professor Harding concludes that “international comparisons establish beyond dispute that autonomous visits-based inspections of prisons and other closed institutions comprise an essential tool in any package of mechanisms for regulating prison conditions.”

Does the U.S. corrections system rehabilitate criminals? Does it provide education, vocational education, or substance abuse programming that helps people become more productive members of society? This is perhaps the most challenging question in corrections, and the next two chapters address it. Steven Belenko, Kimberly Houser, and Wayne Welsh review the evidence on the effectiveness of drug and alcohol treatment, and Doris MacKenzie reviews the evidence on vocational, educational, and work programs. Both chapters identify and discuss the emergence of a body of literature identifying evidence-based treatment practices and principles. If these principles are used with the right client group (selected through risk and needs assessments), recidivism can be reduced. The reductions in recidivism aren’t huge (on the order of 5 to 15 percent), but they are cost-beneficial and result in public safety gains that are worth the investment. Both chapters also end with a recommendation for continued rigorous program evaluations, and they also urge caution, noting that successfully implementing and sustaining effective treatment (p. 16) require careful attention to the systems, organizations, and staff factors that affect implementation.

One of the major themes running throughout the Belenko et al. and the MacKenzie chapters is that not all offenders are alike, and effective treatments must match the “right program with the right offender. “As corrections populations have risen, so too has the prevalence of three groups of offenders who present unique challenges: persons with mental illnesses, females, and sex offenders. Jennifer L. Skeem and Jillian K. Peterson vividly describe how persons with mental illness increasingly find themselves caught up in the corrections system, and how their unique (usually unmet) needs translate into significant management problems for corrections agencies. As Skeem and Peterson discuss, the deinstitutionalization movement of the 1970s served to move the mentally ill out of state hospitals and into the community. The hope was that a community-based approach, with programs, medication, and the necessary supports, would replace institutionalization. But these supports never materialized, and former patients often failed to take their medications. Many persons with mental illness become unemployed and homeless, and abuse alcohol and drugs—and many are eventually recycled in and out of corrections. But Skeem and Peterson write that we know a great deal about how to identify and effectively treat persons with mental illness, and the public seems increasingly sympathetic to providing services to the nonviolent mentally ill who can be supported in the community.

We then reserve a number of chapters for consideration of specific offender populations and sets of experiences, including sex offenders, female offenders, juveniles, and the most serious violent offenders. Roxanne Lieb, one of the nation’s foremost experts on sex offenders, traces the evolution of punishment policies toward sex offenders, and notes the difficulty of devising management and treatment and surveillance strategies when sex offenders define such a broad group. Her review of the treatment literature is not particularly promising for more serious sex offenders, as the interventions tried so far have not reduced reoffending, although they seem to reassure the public. LaTosha Traylor and Beth Richie write about the ever-increasing number of females in corrections and the need for gender-based programs, both inside prisons and on the outside. Drug offenses seem to account for the great increase of women in corrections, and their prior life experiences (often characterized by physical and sexual abuse) make treatment more challenging. Nonetheless, Traylor and Richie describe several innovative programs addressing the needs of imprisoned females, particularly mothers and their children.

Of course, corrections is more than the sum of its programs (or lack thereof). State prisoners will spend, on average, about two and a half years in confinement. That period might be beneficial to some inmates, who choose to participate in programs or use the time for personal reflection and growth. But for others, the pains of imprisonment take a horrendous personal and psychological toll. These inmates will return to society more socially isolated, embittered, and unable to successfully reintegrate. The next two chapters discuss these issues in detail. No one knows the pains of prison more completely than Michael G. Santos, a federal prisoner who wrote his chapter from behind prison walls. Mr. Santos has been (p. 17) confined in federal prison since 1987 due to a cocaine conviction, his first offense. His chapter provides a graphic description of life inside prison and illustrates how American prisons perpetuate a cycle of failure. Professor Craig Haney, an expert on the psychological impact of prison confinement, would agree with Mr. Santos. His chapter argues that our justice system suffers from structural and legal flaws that causes pain to the imprisoned and ultimately increase crime. Adapting to prison means exposure to overcrowding, violence, and sexual assault, which ultimately cause personal and social problems that prevent successful reintegration. Mr. Santos and Professor Haney make clear that what happens in our prisons eventually spills out into our communities.

Next, the handbook turns to the critical problems of the reintegration or reentry of ex-offenders into the community. In 2010 alone, more than 700,000 people will leave prison and return home. The next three chapters focus on prisoner reentry: the process of leaving prison and returning to free society. Edward E. Rhine, a scholar and respected correctional administrator, traces the dramatic changes that have occurred in parole release and supervision over the past 25 years. The majority of prisoners are now released “mandatorily,” without appearing before a parole board with discretion to set their dates of release. How parole boards make these decisions, and the implications those decisions have for parole agents, the culture of supervision, and public safety, are clearly articulated. Thomas P. LeBel and Shadd Maruna describe the increasingly difficult realities of transitioning from prison to the community. Using narratives from people who have struggled with the transition, LeBel and Maruna highlight the importance of creating and supporting programs that promote family and community bonding. People need to be given an opportunity to redeem themselves and start over. Christy A. Visher and Jeremy Travis have spent the last decade studying the needs of prisoners returning home, and they show once again that rehabilitation is not dead. Communities around the country have implemented prisoner reentry programs over the past decade, and the knowledge is now strong enough to identify principles of effective programs. The authors urge the research community to engage in interdisciplinary, longitudinal studies of prisoner reintegration, using multiple outcome measures, so that we may better understand the full effects of recent social policies.

The final two chapters focus on the nation’s ultimate penalty, death, which has been falling into decline, and its near equal in severity: the ever-more-popular sanction of life without parole (or LWOP). Carol S. Steiker and Jordan M. Steiker examine the long and unsuccessful project of regulating the death penalty through constitutional law (denounced, late in their careers, by Justices Powell, Blackmun, and Stevens, and for decades by Justices Marshall and Brennan). The constitutional jurisprudence has been beset since the 1970s by the incompatible aims of individualized sentencing and the quest for consistency in the legal standards used for selection of those defendants to be put to death. The Professors Steiker call into question whether capital-punishment regimes, in place in three-fourths of the U.S. states, are ever likely to meet basic concerns of fairness in process and outcome. (p. 18) They report that enormous problems of politicization, racial discrimination, jury confusion, underfunded defense services, erroneous convictions of the innocent, and inadequate enforcement of federal rights have proven impervious to reform. They conclude that, “The basic preconditions for an adequately administered regime of capital punishment do not currently exist in the United States and cannot reasonably be expected to be achieved.”

The death penalty is not an isolated phenomenon, unattached to other legal practices. Franklin E. Zimring and David T. Johnson observe that, while state execution is a tiny numerical part of the American sentencing landscape, it nonetheless “casts long shadows over the principles and practice of criminal justice generally.” They argue that the availability of the death penalty has contributed to distortions in the substantive law of homicide and the “penal inflation” of extraordinarily severe non-capital punishments in the United States—particularly the increased use of prison terms of life without parole. Indeed, many death penalty abolitionists have embraced the use of LWOP sentences in efforts to displace capital punishment, but this has resulted in an unintended explosion in the use of LWOP—far out of proportion to any moderating effect on the use of the death penalty. Professors Zimring and Johnson argue that this trade-off has “provided moral camouflage for a penalty … which is almost as brutal as state killing.” More generally, the long-running controversy over capital punishment has drained enormous energy, attention, and resources that otherwise might have been focused on reforms elsewhere in the system. Professors Zimring and Johnson observe that “In any developed nation there are only a limited number of lawyers with the political values and special skills required to defend against governmental excess in the prohibition of conduct and the punishment of crime…. [W]hen most of these fine lawyers are concentrating on the 3,500 capital defendants on death row in the United States, the result is a shortage of resources to monitor state authority in a nation with more than 2 million persons behind bars.”

On one level, each chapter in the handbook paints a portrait of a sentencing and corrections system in crisis, with programs and policies often driven by politics rather than evidence about whether they work. Individuals cycle in and out of an increasingly expensive system with most of their needs left unmet. The challenges of reintegration can appear insurmountable. Yet each chapter also draws upon emerging scientific and experiential knowledge pointing to a better way. One perverse “advantage” exists for criminal justice reformers of the twenty-first century: Because the system has become so overgrown, and is dysfunctional in so many ways, there are myriad opportunities to make changes that will improve the lives of thousands of individuals. Even incremental deflections of how things are done in American sentencing and corrections, if in a beneficial direction, can have outsize rewards in how human lives are lived and how our communities cohere. We hope that readers will study these chapters closely and will consider their recommendations because, as a whole, they build the foundation for a sentencing and corrections system that is more humane, less expensive, and ultimately more effective than the one we now have.

References

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Notes:

(1) . The prison rates reported for 2000 and 2009 do not correct for changes in the way that the U.S. Department of Justice counts blacks, whites, and Hispanics, instituted in the mid-1990s (Frase 2009; Tonry 2011). The changes had the effect of reducing the reported black and white imprisonment rates because Hispanic prisoners were for the first time disaggregated from both the black and white totals.