Today, the U.S. has the highest incarceration rate of any country in the world. With over 2.3 million men and women living behind bars, our imprisonment rate is the highest it’s ever been in U.S. history. And yet, our criminal justice system has failed on every count: public safety, fairness and cost-effectiveness. Across the country, the criminal justice reform conversation is heating up. Each week, we feature our some of the most exciting and relevant news in overincarceration discourse that we’ve spotted from the previous week. Check back weekly for our top picks.
South Dakota Reform Package Falls Short of Promise
In a slow news week, the most significant legislative update is that South Dakota's legislature passed their tepid reform legislation —which, among other things, cements South Dakota's unfortunate standing as the only state in which “internal possession” (i.e., failing a drug test) constitutes drug possession. Governor Daugaard is expected to sign a bill that many consider to be comprehensive reform, but hopefully the state will continue to look for opportunities to reduce its reliance on incarceration.
Loud Calls for Reform from a Federal Judge, a Congressional Research Arm, and Researchers
Also this week, several persuasive and diverse voices called for needed reforms to break the addition to overincarceration:
Last year, we highlighted Judge John Gleeson’s powerful lament about the injustice of federal drug mandatory minimums in the case of Jamel Dossie. Now another flawed facet of federal sentencing has drawn Judge Gleeson’s attention: federal sentencing guidelines. The guidelines are a set of advisory sentences that judges must consider, but are not obligated to follow. Judge Gleeson highlights the guidelines’ severity with the case of Isidro Diaz, a 37-year-old man who operated as a middleman in the sale of a large quantity of heroin, for which the federal guidelines suggest he spend 8-10 years in prison. The judge summarizes his criticism as follows:
[T]he Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
Although the guidelines are only advisory, they are nonetheless highly influential. We know from social science research that anchoring effects can be powerful even when the anchor is trivial; for example, a study of German judges found that they produced higher sentences after rolling a high number on a die than they did after rolling a low number. And far from being trivial, the sentencing guidelines are a powerful anchor; a recent study by the U.S. Sentencing Commission found that the majority of recent federal sentences fell within the guidelines’ range. To understand why the federal guidelines for drug offenses need to be revised, read Judge Gleeson’s full opinion in United States v. Isidro Diaz here.
The Congressional Research Service recently published a report in which it concludes that sentencing policy created the explosive growth of the federal prison system and its serious overcrowding problem, and offers policy prescriptions to reverse the trend. Among them are modifying mandatory minimum penalties, placing more people on probation, reinstating parole for federal prisoners, and repealing federal criminal statutes for some offenses. You can find the report here.
When Judge Sol Wachter said that a grand jury would indict a ham sandwich if a prosecutor asked nicely, he was being unkind to grand juries. That was 1985, and a lot has changed since then; in particular, there are simply many, many more federal crimes on the books today. In a recent paper, Professor Glenn Reynolds explores the due process implications of a criminal code that makes so many of its citizens into ham sandwiches.
Studies have repeatedly shown that prison time makes finding legal employment more difficult and decreases earnings for those who are employed. Now a recent study sheds light on the flip side of that coin: spending time in prison leads to increased earnings from illegal activity. In other words, prison time can create incentives to break the law by making licit living more difficult and illicit living more lucrative. It should be asked, then, whether our 40 percent recidivism rate would be lower if we weren’t placing so many people in prison to begin with.