Penal policy and penal legislation in recent American experience.

• Author: Zimring, Franklin E.

INTRODUCTION I. AMERICAN PENAL POLICY: GOVERNMENT STRUCTURE AND RECENT TRENDS A. The Federal System and American Penal Policy B. The Immoderate Recent Trend II. CHANGING PATTERNS OF MEDIATION AND REVIEW IN THE POLITICS OF PUNISHMENT III. PENAL LEGISLATION AND PENAL POLICY IN RECENT TIMES A. A Standard Model B. The Latitude in Legal Structure C. The Post-1985 Pattern D. The Third Era of Penal Expansion IV. SENTENCING AND THE FUTURE OF IMPRISONMENT A. The Downside Potential for Imprisonment B. Does Sentencing Structure Matter? CONCLUSION INTRODUCTION

The last quarter of the twentieth century stands out as the most remarkable period of change in American penal policy even when the entire history of the United States is considered. Nothing in the two centuries before 1975 would prepare observers to expect that a long run of stable rates of incarceration would shift to a fourfold expansion of rates of imprisonment in less than three decades. This Article will consider the origins and careers of proposals for penal legislation in a time of radical change. How, when, and why were legislative acts involved in the massive shift of policy after the early 1970s? What institutional controls were implicated in penal policy changes after 1975, and how did they function? To what extent was legislation a driving force in changes in penal policy during the 1970s, the 1980s, and the 1990s? What does a review of the recent history of American criminal justice tell us about what comes next?

In this Article, Part I presents introductory descriptions of where penal policy is made in the American governmental system and outlines national-level measurements of punishment trends over the period since 1975. Part II addresses issues of quality control in shaping, passing, implementing, and reviewing penal legislation in recent U.S. experience. Part Ill then addresses the role of penal legislation in changing penal practices in the past generation. The final Part discusses two questions about the future of imprisonment.

1. AMERICAN PENAL POLICY: GOVERNMENT STRUCTURE AND RECENT TRENDS

   This Part covers two topics not usually discussed together: the government organization of criminal justice in the United States and the surprising imprisonment output of that federal system in the period after 1972.

   1. The Federal System and American Penal Policy

      A short course in federalism is a strict necessity to any comprehension of how criminal justice policy is constructed and executed. The quintessential difference between the government of the United States and that of most developed Western nations is the division of government power between the national government and fifty different state governments, with most of the authority to make and enforce the criminal law given to the states and localities. Table 1, which is taken from a 1986 analysis of the federal role in criminal justice, (1) shows the level of responsibility for administering three institutions at the front lines of American criminal justice: prisons; jails for short-term incarceration and remand; and police agencies, including special-purpose law enforcement groups, like drug enforcement agencies and state highway patrols, as well as general jurisdiction police.

      While both states and the national government have created penal codes and enforced them, the national government accounts for less than ten percent of all prisoners and of all police and just a tiny fraction of the jails. Most persons in prison have been convicted of violating state penal laws, so the fifty state governments have the most influential criminal codes in that sense. But even though the states pass the laws and run the prisons, most police (and most prosecutors as well) are county and municipal employees, so the power to enforce the laws and to set the punishment in individual cases is really more decentralized than state-level penal codes and prisons. (2) The most powerful punishment-setting individuals are found in the thousands of counties and cities of the United States.

      With most power decentralized to the states and localities, we would expect to find very large state-to-state variations in the extent of criminal punishment, and this has been true for a long time. Table 2 shows the extent of variation in rates of imprisonment in the United States in 1980, ranked from highest to lowest. (3)

      From top to bottom, rates of imprisonment varied in the United States by an order of magnitude, with the highest states showing an imprisonment rate ten times higher than that of the lowest state. This is fully as much variation as the range of imprisonment rates found across European nations, and led Gordon Hawkins and this author in 1991 to title our chapter dealing with the range of state policies "Fifty-One Different Countries"--suggesting that there was an element of myth to the notion that the United States had a single aggregate set of punishment priorities and policies. (4) And the ten-to-one differences at the state level are only the beginning. With local prosecutors and police setting their own priorities, each state might contain very large variations at the county level from the aggregate average computed by adding these autonomous regions together. How much further variation is found at the county level in rates of imprisonment or in total incarceration (a broader measure, because it includes jails as well as prisons) has not yet been determined.

      Decentralized power and large variations in punishment policy would lead us to expect two things about rates of imprisonment in the United States that turned out not to be the case in the last quarter of the twentieth century. First, with so many different centers of power exercising independent authority, the structure of U.S. criminal justice power would argue against seeing clear trends in aggregate policy measures like rates of imprisonment at the national level. Second, because national aggregates include so many different independently determined outcomes, even if trends up or down in policy could be sustained over many different independent centers of authority, the magnitude of aggregate changes at the national level should be modest. So adding up fifty-one independent prison policies would not be likely to show much of a trend at all, and, if it did, the slope of the change would be modest, with so many different systems averaging out the extremes experienced by individual states and presenting a smoother aggregate portrait. That is the theoretical expectation. It turned out to be quite wrong in the period since 1973.

   2. The Immoderate Recent Trend

      Figure 1 puts the lie to expectations of moderate changes in aggregate U.S. imprisonment rates by charting rates of state and federal imprisonment by year from 1925 to 2002. (5)

      [FIGURE 1 OMITTED]

      The first fifty years of history summarized in Figure 1 are consistent with the belief that aggregate U.S. totals would not show clear trends and not exhibit high magnitudes of variation. Rates of imprisonment oscillate over five decades without any long-term upward or downward trend and with increases or decreases within twenty percent of long-term mean levels. After 1973, however, the trend turns up in a sharp and sustained fashion. The collective behavior of fifty states and the national government stops looking like an aggregate of independently determined outputs and begins to appear as if there were a larger coordinating force pushing all or most of the constituent elements a long distance in the same direction. Yet there was neither change in the allocation of power in the federal system nor any major federal initiative in the 1970s or 1980s that would provoke such uniformity. What looks like a drastic shift in the tendency for states to act in consort has no evident mechanical or legislative causes. Any larger force operating to coordinate state and local action was outside the spheres of government in the United States. But there is nonetheless every evidence of important change in the character of policy trends in American criminal justice.

2. CHANGING PATTERNS OF MEDIATION AND REVIEW IN THE POLITICS OF PUNISHMENT

   Serious criminal offenders are never popular in stable democracies, and this produces tendencies for political proposals about crime and criminals to begin with demands for further punishment and larger investment in suppressing crime. But this predisposition does not produce a continuous intensification of punishment and law enforcement for a variety of reasons. One is inertia. Crime is not a terribly important topic in the domestic politics of most democracies--there are not many powerful constituencies that stand to make...