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THE SENTENCING REFORM MOVEMENT
Cassia Spohn
School of Criminology and Criminal Justice
Arizona State University
Concerns about disparity, discrimination, and unfairness in sentencing led to a
“remarkable burst of reform”1that began in the mid-1970s and continues today.
The initial focus of reform efforts was the indeterminate sentence, in which the
judge imposed a minimum and maximum sentence and the parole board determined the
date of release. The parole board’s determination of when the offender should be released
rested on its judgment of whether the offender had been rehabilitated or had served
enough time for the particular crime.
Under indeterminate sentencing, sentences were tailored to the individual
offender, and discretion was distributed not only to the criminal justice officials who
determined the sentence but also to corrections officials and the parole board. The result
of this process was “a system of sentencing in which there was little understanding or
predictability as to who would be imprisoned and for how long”2
Both liberal and conservative reformers challenged the principles underlying the
indeterminate sentence and called for changes designed to curb discretion, reduce
disparity and discrimination, and achieve proportionality and parsimony in sentencing.
Liberals and civil rights activists argued that indeterminate sentencing was
arbitrary and capricious and therefore violated defendants’ rights to equal protection and
due process of law.3 They charged that indeterminate sentences were used to incapacitate
those who could not be rehabilitated and that offenders’ uncertainty about their dates of
release contributed to prison unrest.
Liberal critics were also apprehensive about the potential for racial bias under
indeterminate sentencing schemes. They asserted that “racial discrimination in the
criminal justice system was epidemic, that judges, parole boards, and corrections officials
could not be trusted, and that tight controls on officials’ discretion offered the only way
to limit racial disparities.”4
Political conservatives, on the other hand, argued that the emphasis on
rehabilitation too often resulted in excessively lenient treatment of offenders who had
committed serious crimes or had serious criminal histories.5 They also charged that
sentences that were not linked to crime seriousness and offender culpability were unjust.6
These conservative critics championed sentencing reforms designed to establish
and enforce more punitive sentencing standards. Their arguments were bolstered by the
findings of research demonstrating that most correctional programs designed to
rehabilitate offenders and reduce recidivism were ineffective.7
After a few initial “missteps,” in which jurisdictions attempted to eliminate
discretion altogether through flat-time sentencing8 states and the federal government
adopted structured sentencing proposals designed to control the discretion of sentencing
judges.
A number of states adopted determinate sentencing policies that offered judges a
limited number of sentencing options and included enhancements for use of a weapon,
presence of a prior criminal record, or infliction of serious injury. Other states and the
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federal government adopted presumptive sentence guidelines that incorporated crime
seriousness and prior criminal record into a sentencing “grid” that judges were to use in
determining the appropriate sentence.
Other reforms enacted at both the federal and state level included mandatory
minimum penalties for certain types of offenses (especially drug and weapons offenses),
“three-strikes-and-you’re-out ” laws that mandated long prison sentences for repeat
offenders, and “truth-in-sentencing” statutes that required offenders to serve a larger
portion of the sentence before being released.
This process of experimentation and reform revolutionized sentencing in the
United States.
Thirty years ago, every state and the federal government had an indeterminate
sentencing system and “the word ‘sentencing’ generally signified a slightly mysterious
process which . . . involved individualized decisions that judges were uniquely qualified
to make.”9 The situation today is much more complex. Sentencing policies and practices
vary enormously on a number of dimensions, and there is no longer anything that can be
described as the American approach.
The Impact of the Sentencing Reform Movement: Mass Incarceration
In 1971, David Rothman, one of the foremost authorities on the history and
development of the prison system, wrote that “We have been gradually emerging from
institutional responses, and one can foresee the period when incarceration will be used
still more rarely than it is today.”10
Two years later, the National Advisory Commission on Criminal Justice
Standards and Goals, which concluded that “the prison, the reformatory, and the jail have
achieved only a shocking record of failure,”11 recommended that there should be no new
correctional institutions for adults and that existing institutions for juveniles should be
shut down.
Four decades later, it is clear that Rothman’s prediction did not come true and that
the commission’s recommendations were not followed.
Their calls for reductions in the use of incarceration, which were voiced at a time
when the inmate population was just over 300,000, fell on deaf ears. Rather than
declining, America’s imprisonment rate, which had fluctuated around a steady mean of
110 individuals per 100,000 population for most of the 20th century, increased every year
from 1972 to 2008, when the rate peaked at 504 per 100,000 population.
In terms of raw numbers, the prison population increased from about 300,000 to
just over 1.6 million between 1972 and 2008. Since 2008, the imprisonment rate has
declined slightly, driven primarily by changes in the California prison population
mandated by the Public Safety Realignment policy implemented in that state.12
As these figures convincingly demonstrate, for the past 40 years the United States
has been in the midst of “an unprecedented imprisonment binge.”13 These dramatic
increases are not due to increases in serious crime rates; in fact, the crime rate in the
United States has declined steadily since 1991.
Most criminologists and legal scholars contend that changes in sentencing
policies and practices fueled the growing use of imprisonment in the United States.14
According to a recent comprehensive report on the growth of incarceration in the United
States by the National Research Council,15 the explosion in the prison population can be
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attributed primarily to growth in prison admission rates, especially for drug offenses, and
to increases in time served, particularly for violent crimes.
These changes, in turn, are largely attributable to the sentencing reform initiatives
aimed at achieving greater severity and certainty of punishment—mandatory minimum
sentences, truth-in-sentencing statutes, three-strikes sentencing provisions, life without
the possibility of parole (LWOP) laws, and overly punitive sentencing guidelines in
which the severity of the sentence is not proportionate to the seriousness of the crime.
Scholars and practitioners concerned about skyrocketing imprisonment rates (and
the collateral consequences of incarceration for offenders, their families and their
communities) have called for a new round of sentencing reform designed to slow the flow
of people into state and federal prisons and reduce both the number of persons now
incarcerated and the lengths of sentences they are serving.16
To accomplish this, the tough-on-crime laws that were enacted during the
sentencing reform movement of the 20th Century (i.e., mandatory minimum sentences,
LWOP, three-strikes, and truth-in-sentencing laws) must be repealed or dramatically
scaled back and statutory maximum sentences must be substantially reduced and must be
proportionate to the seriousness of the crime.
There is growing evidence that the time is right to pursue these policy changes.
In 2006, Bruce Western predicted that “mass imprisonment is likely to be
preserved by the political and economic forces that created it,” adding that “policy
makers and voters appear to retain a keen appetite for punishment.”17
As the second decade of the 21st century unfolds, this prediction, which appeared
to be eminently reasonable just nine years ago, seems less plausible. Evidence that
Americans’ appetite for punishment may be shrinking and that the United States must
chart a different course on sentencing comes from a variety of sources.
For example, in a speech to the American Bar Foundation in August of 2013,
Attorney General Eric Holder unveiled the Department of Justice’s “Smart on Crime
Initiative,” which called for major changes to federal sentencing practices and for a
reassessment of the nation’s system of mass imprisonment.18 Also at the federal level,
Congress was considering legislation to reduce prison overcrowding and the skyrocketing
costs of incarcerating low-level offenders by giving judges more discretion when
sentencing offenders subject to mandatory minimum penalties.
A number of states also are re-thinking their approach to sentencing nonviolent
offenders and drug offenders; these states have passed laws designed to rollback or
otherwise revise mandatory minimum sentences for these types of offenders.19 Other
states have tackled the drug offender problem by either decriminalizing or legalizing
recreational use of marijuana.
Although critics20 contend that these reform efforts are “meager” and represent
little more than “nibbling at the edges” of the problem, the fact that they are supported by
politicians from both sides of the political spectrum and by large majorities of American
citizens suggests that the time is indeed ripe for major change in sentencing policies and
practices.
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Notes
1
Walker, Samuel. 1993. Taming the System: The Control of Discretion in Criminal Justice,
1950-1990. New York: Oxford University Press; 112
2
United States Department of Justice, Bureau of Justice Assistance. 1996. National Assessment
of Structured Sentencing. Washington, DC: U.S. Department of Justice; 6
3
American Friends Service Committee, 1971; Davis, 1969; Frankel, 1972
4
Tonry, 1995: 164
5
van den Haag, 1975; Wilson, 1975
6
von Hirsch, 1976
7
Martinson, 1974
8
Walker, 1993
9
Tonry, 1996: 3
10
Rothman, 1971: 295
11
National Advisory Commission on Criminal Justice Standards and Goals, 1973: 597
12
U.S. Department of Justice, 2013
13
Austin and Irwin, 2011
14
Blumstein and Beck, 1999; Garland, 2001; Mauer, 2001; National Research Council, 2014;
Tonry, 1996; Tonry, 2014; Zimring, 2001
15
National Research Council, 2014
16
Tonry, 2014; Tonry and Melewski, 2008
17
Western: 195
18
U.S. Department of Justice, 2013: 1
19
Subramanian and Delaney, 2014
20
See, for example, Tonry, 2015
REFERENCES
American Friends Service Committee. 1971. Struggle for Justice: A Report on Crime
and Punishment in America. Boston: Little, Brown.
Austin, James and John Irwin. 2011. It’s About Time: America’s Imprisonment Binge.
Belmont, CA: Wadsworth.
Blumstein, Alfred and Allen J. Beck. 1999. Population growth in US prisons, 19801996.” In Michael Tonry and Joan Petersilia (eds.), Prisons, Crime and Justice:
A Review of Research, Vol 26. Chicago: University of Chicago Press.
Davis, Kenneth Culp. 1969. Discretionary Justice: A Preliminary Inquiry. Baton
Rouge, LA: Louisiana State University Press.
Frankel, Marvin. 1972. Lawlessness in sentencing. University of Cincinnati Law
Review. 41: 1-54.
Garland, David. 2001. “Introduction: The meaning of mass imprisonment. Punishment
& Society, 3: 5-7.
Martinson, Robert. 1974. “What Works? Questions and Answers about Prison
Reform,” Public Interest 24: 22-54.
Mauer, Marc. 2001. The causes and consequences of prison growth in the USA.
Punishment & Society, 3: 9-20.
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National Advisory Commission on Criminal Justice Standards and Goals. 1973. Task
Force Report on Corrections. Washington, DC: U.S. Government Printing
Office.
National Research Council. 2014. The Growth of Incarceration in the United States:
Exploring Causes and Consequences. Washington, DC: The National Academies
Press.
Rothman, David. 1971. The Discovery of the Asylum: Social Order and Disorder in the
New Republic. Boston, MA: Little, Brown & Co.
Subramanian, Ram and Ruth Delaney. 2014. Playbook for Change? States Reconsider
Mandatory Sentences. New York: Vera Institute of Justice.
Tonry, Michael. 1995. Malign Neglect: Race, Crime, and Punishment in America. New
York: Oxford University Press.
Tonry, Michael. 1996. Sentencing Matters. New York: Oxford University Press.
Tonry, Michael. 2014. Remodeling American sentencing: A ten-step blueprint for
moving past mass incarceration. Criminology & Public Policy, 13: 5030533.
Tonry, Michael and Matthew Melewski. 2008. The malign effects of drug and crime
control policies on black Americans. Crime and Justice, 37: 1-44.
United States Department of Justice, Bureau of Justice Assistance. 1996. National
Assessment of Structured Sentencing. Washington, DC: U.S. Department of
Justice.
U.S. Department of Justice. 2013. Smart on Crime: Reforming the Criminal Justice
System for the 21st Century. Washington, DC: Author.
van den Haag, Ernest. 1975. Punishing Criminals: Confronting a Very Old and Painful
Question. New York: Basic Books.
von Hirsch, Andrew. 1976. Doing Justice: The Choice of Punishments. New York: Hill
and Wang.
Walker, Samuel. 1993. Taming the System: The Control of Discretion in Criminal
Justice, 1950-1990. New York: Oxford University Press.
Western, Bruce. 2006. Punishment and Inequality in America. New York: Russell Sage.
Wilson, James Q. 1975. Thinking About Crime. New York: Basic Books.
Zimring, Franklin F. 2001. Imprisonment rates and the new politics of criminal
punishment. Punishment & Society, 3: 161-166.
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