A New Era in Criminal Sentencing and Incarceration

On October 20, the New York Times reported that “more than 130 police chiefs, prosecutors and sheriffs — including some of the most prominent law enforcement officials in the country” have formed a group (Law Enforcement Leaders to Reduce Crime and Incarceration) to lobby for a wide-scale reduction in the  incarceration rate.  The group wants a range of alternatives to criminal arrest, and calls for a revision of the criminal code and an end to mandatory minimum prison sentences.  Criticism for get-tough-on-crime sentencing has been gaining momentum, and a growing number of investigative reporters, law-makers, judges, civic leaders, and academics have been asking hard questions about the ethics of practices like mandatory minimum laws and solitary confinement.

Some data-driven analyses seem to suggest that incarceration has a host of counter-productive and counter-intuitive effects. The U.S. Department of Health and Human Services points to the psychological effects of incarceration. DHHS Report  Incarceration is associated with lower earning potential and a loss of connection with family and friends. Safer Foundation Report

And there has been concern for some time regarding certain features of the Federal Sentencing Guidelines that have been perceived to disproportionately and needlessly affect minority populations. For example, before the Fair Sentencing Act (FSA) was passed in 2010, a defendant faced a minimum five-year sentence if convicted of possessing at least five grams of crack. Possession of 50 grams brought a minimum of 10 years. Conviction for possession of powder cocaine resulted in far milder consequences.

Meanwhile, the deterrent effect of harsh prison sentences is being called into question.  A study by David S. Lee, Justin McCrary examining the deterrent effects of prison sentences in young people under age 18 (when sentences are relatively short) and over 18 (when sentences are relatively harsher) detected little discernable difference in the level of deterrence, leading them to conclude that severity of sentencing had little effect on the decision to commit a crime in this population. Lee & McCrary Study

Slowly, steps taken to address these concerns are bearing fruit.  A 2015 U.S. Sentencing Commission study reported that over the three years following the passage of the Fair Sentencing Act, the number of offenders sentenced to a prison term for crack-cocaine offenses dropped by half.  The commission estimated the FSA will reduce the number of prisoners by 29,653 per year. Meanwhile, Congress appears poised to do more.  Conservative Republican Senator Charles E. Grassley (Iowa) and Democrat Senator Richard J. Durbin (Illinois) are two prominent politicians who are reaching across the aisle and spearheading attempts to lessen the effects of mandatory prison sentences, increase early release for prisoners, and create new programs to prepare offenders for life after prison.  Earlier this month, the Justice Department announced one of the largest releases of federal prisoners in history.  Approximately 6,000 inmates will be released (roughly one third will be deported).  Most of those released were convicted for nonviolent drug offenses.

We are at a turning point regarding sentencing offenders.  Much of the current activity involves undoing what has been done—revisiting the question of mandatory minimums, asking tough questions about legislation that imposes disproportionate burdens on minority populations, and releasing inmates whose freedom likely poses little threat to society.  These are positive steps in the right direction, but they leave questions about how we should rebuild our criminal justice system to create one that accomplishes our goals.  This project begins by clearly identifying our objectives.

Behavioral science has an enormous role to play in this project.  A major function of the criminal justice system is encouraging positive behavior and discouraging decisions that result in harm.  There is a wealth of data that can and should speak to the best way to accomplish these ends.  In the next several posts, I will take a look at several angles of the sentencing question to propose positive steps forward.

Online CLE — When Good Intentions Go Awry: An Introduction to Behavioral Ethics in a Legal Context

If you are in need of continuing legal education credit (or are otherwise interested), I will be co-presenting an upcoming seminar on Behavioral Legal Ethics on November 10, 2105, with Professor Catherine Gage O’Grady of the James E. Rogers College of Law at the University of Arizona.  The program provider, Practising Law Institute, is a leader in the field of CLE education.

Here is the link and description for anyone who might be interested:

Description:

Ethics discussions often focus narrowly on the “bad apples” who deliberately choose to evade the rules of the profession. But as decades of empirical research demonstrate, unethical behavior frequently results from a broader set of variables that can cause even well-intentioned lawyers to act contrary to their own principles. Recently dubbed “Behavioral Legal Ethics,” this area of study draws lessons from behavioral science – including social psychology, behavioral economics and neuroscience – to explore the many subtle, often unconscious, factors that influence ethical decision-making. These include, for example:

• The power of conformity and obedience to authority
• The role of framing in ethical deliberation
• The slippery slope toward misbehavior
• The pernicious influence of overconfidence and self-serving biases

Please join Professor Catherine Gage O’Grady from the University of Arizona’s James E. Roger College of Law and Professor Tigran W. Eldred from New England Law | Boston for a one-hour briefing on Behavioral Legal Ethics. Topics to be explored will include how behavioral science challenges standard conceptions of legal ethics, as well as how a behavioral approach can address misconduct in diverse practice settings. This session will be of particular interest to newly admitted lawyers, who are uniquely vulnerable to the behavioral factors that contribute to unethical behavior and, conversely, are well-suited to overcome them.

(full disclosure: the program fee is $299, which is the tuition charged by PLI for the event)

Update,  11/20/15: I thoroughly enjoyed teaching this material with Professor Catherine Gage O’Grady.  The recording of the PLI session is available at a reduced rate here.