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Punishment Of Offenders
According to the Bureau of Justice Statistics, in the year 1980 we had approximately 501,900 persons incarcerated across the United States. By the year 2000, that figure has jumped to over 2,014,000 prisoners. The current level of incarceration represents the continuation of a 25-year escalation of the nation’s prison and jail population beginning in 1973. Currently the U.S. rate of 672 per 100,000 is second only to Russia, and represents a level of incarceration that is 6-10 times that of most industrialized nations. The rise in prison population in recent years is particularly remarkable given that crime rates have been falling nationally since 1992. With less crime, one might assume that fewer people would be sentenced to prison. This trend has been overridden by the increasing impact of lengthy mandatory sentencing policies.
The proliferation of harsh mandatory sentencing policies has inhibited the ability of courts to sentence offenders in a way that permits a more “problem solving” approach to crime, as we can see in the most recent community policing and drug court movements today. By eliminating any consideration of the factors contributing to crime and a range of responses, such sentencing policies fail to provide justice for all. Given the cutbacks in prison programming and rates of recidivism, in some cases over 60% or more, the increased use of incarceration in many respects represents a commitment to policies that are both ineffective and unfair. I believe in equal, fair and measured punishment for all. I don’t advocate a soft, or a hard approach to punishment. But we must take a more pragmatic look at what the consequences of our actions are when we close our eyes and blindly carry out sentencing which is neither fair, nor warranted, given the circumstances.
I would like to address two primary areas in punishing offenders that I believe need attention, Mandatory Minimums and Three Strikes Policies. Our lawmakers must take on these misguided policies, which have thus far been inefficient and ineffective. They must do this in order to curb our rising prison populations and return us to a level playing field of fair punishment for all persons regardless of race, sex, or ethnic background.
The mandatory minimum sentencing policies that now exist in every state have been used disproportionately for drug offenders, who now constitute one of every four inmates nationally. Because of the severe and rigid sentencing scheme mandated by the drug laws, low-level drug offenders face years in prison. According to the Bureau of Justice Statistics, of the total population of drug offenders in custody, the average maximum sentence for first time felony offenders convicted of drug related charges range between 87.6 months for Class B felonies to 42.4 months for a Class E felony. These statistics also reveal that one in five of the drug offenders incarcerated had no prior felony convictions. Nearly two-thirds of these drug offenders also were never convicted of a violent felony in the past.
What we are dealing with here is non-violent, first time offenders and judges have no choice in most states but to incarcerate them for lengthy periods of time which only places more pressure on our prison systems. As I stated earlier, I have a down the middle approach to punishment, not too hard or not too soft. Stiff prison sentences can be appropriate for addressing violent crimes and protecting our communities. But such sentences are misguided and destructive when it comes to these types of nonviolent drug offenders. Also, according to the Federal Bureau of Prisons they cost the American taxpayer approximately $20,747 per inmate per year. Another bi-product of mandatory sentencing is a disparate impact on non-white offenders. The United States Sentencing Commission and Federal Judicial Center have found that among offenders who engaged in conduct warranting mandatory minimums, white offenders were less likely than blacks or Hispanics to receive the mandatory minimum term. I believe there are better alternatives to this policy that can more effectively express our values and accomplish our goals without increasing our prison populations and disparaging minorities.
Another sentencing policy that is having a major impact on punishment and its fairness are the so called “3 Strikes Laws” that many states have enacted. These laws impose a mandatory life sentence without parole on offenders convicted of certain crimes. Supporters of these laws claim that they will have a deterrent effect on violent crime. Actually, if you think about violent crimes and the way they are committed, most are not premeditated! Therefore removing the argument that criminals would think twice about committing the crime for fear of ending up in prison for the rest of their life. The point is, they don’t take the time to think about the crime they’re committing in the first place, let alone what the consequences will be.
These laws could actually lead to an increase in violence. Criminals could be more likely to resist arrest if they realize that they would be going down for the last time. Imagine if you’re a police officer arresting a twice-convicted felon for his third felony offense. He would have nothing to lose by using any means necessary to escape.
Here is the best hypothetical situation I can come up with to illustrate how unfair these laws can be. “An 18-year old high school senior living in Washington State pushes a classmate down to steal his $150 Michael Jordan sneakers –Strike One. He gets out of jail and shoplifts a jacket from the Wal-Mart, pushing aside the clerk as he runs out of the store – Strike Two; then he gets out of jail, goes straight, and moves to Hawaii. While there, he goes on to college at Hawaii Pacific University and gets his Bachelors degree in Justice Administration. Nine years later he moves back home and gets into a bar fight when someone insults his wife, and intentionally hits someone, breaking his nose. Criminal behavior to be sure, but hardly the crime of the century,
yet it is Strike Three. Under this states “Strike 3” laws, he is sent to prison for the rest of his life, end of story. The sad part to this story is that it is very real in principle and happens every day in our court systems across the United States. In my opinion this punishment is a miscarriage of justice and tears against the very fabric of beliefs this nation was founded upon. The bottom line is that these laws directly contradict the principle expressed in the Eighth Amendment known as “proportionality”. It states in part “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. In other words, under our system of criminal justice, the punishment must fit the crime.
Once a defendant is adjudicated or found guilty the most trying facet of a judge’s job can be the sentencing or punishment phase. No other person can have so much responsibility and power in determining how society will treat its transgressors. Most judges are either elected or appointed to their positions because of our supposed confidence in their impartial views when it comes to dispensing justice. However, the trend in the past few years has been for legislatures to minimize the discretion given to judges at sentencing, partly in an attempt to treat similar defendants more similarly and to avoid the effect of rogue judges. These policies have effectively taken some of the important discretion away from the very people who are supposed to be the most intimately involved in our due process. Legislators are too far removed from this process to be mandating broad strokes of punishment without considering each and every case on its merits. If we want to improve our criminal justice system and develop a long-term strategy for addressing the overcrowding in our prisons, then both “3 Strikes Laws” and Mandatory Minimums must be changed.
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