Sentencing

After someone is arrested, s/he is either jailed or released on bond. Once the evidence has been laid before the Court, the defendant appears for sentencing. A person’s sentence is the consequence of being found guilty of a crime. It constitutes what he/she must do to pay the debt for his/her offense. Sometimes, only community service and restitution is required. For more serious offenses, society must be protected by detaining the accused. Detainment or incarceration as a punishment has been considered the best way to prevent future offenses. Yet, there is little scientific evidence that punishment deters crime. In fact, the idea that inflicting pain deters crime makes sense only for those for whom pain is unfamiliar and something to be avoided. For those who have known considerable physical and emotional pain, the practice of inflicting more pain to cause a change in behavior is counter intuitive. For such persons, a life of pain has become so generalized, familiar and expected, pain is no longer a motivation for change. Thus, punishment does not work. Historically, the rules that judges had to apply for sentencing allowed them a considerable amount of discretion to consider mitigating circumstances—psychological distress, poverty, family environment, drug addiction etc. Judicial discretion gave families and communities an opportunity to address the sources of pain that led to criminal behavior and to apply restorative therapies. In the absence of judicial discretion, defendants that may have been responsive to community alternatives instead spend years in jail. In the end, many are de-sensitized to punishment and more challenging to treat.

An unfortunate consequence of allowing judicial discretion was that some people served time for the same offenses for which others did community service. In order to systematize sentencing, a method of sentencing known as “structured sentencing” was introduced. A structured sentence makes a certain amount of jail time required for any given criminal offense. A person’s previous record is taken into account and can lead to longer sentences for repeat offenses. Likewise, a person with no previous record can end up doing a lot of time for a first offense under a “mandatory minimum” law. As requirements for time served increased, jail space to incarcerate people decreased.

Unprecedented growth in prison building was the natural outcome of limiting or removing judicial discretion. Private prison building exploded in the 1980’s, and the inventors of harsh sentencing guidelines and the corporations that built the additional space to accommodate mandatory minimum jail time, worked together to promote “tough on crime” legislation. One such organization that claims credit for “touch on crime” legislation is the American Legislative Exchange Council, a nonprofit organization that writes model legislation on a variety of issues.

Its membership includes the Corrections Corporation of America and 1/3 of all U.S. representatives.