Remodeling American Sentencing: A Ten‐Step Blueprint for Moving Past Mass Incarceration

• DOI: http://doi.org/10.1111/1745-9133.12097
• Date: 01 November 2014
• Author: Michael Tonry
• Published date: 01 November 2014

RESEARCH ARTICLE

REMODELING AMERICAN SENTENCING

Remodeling American Sentencing

A Ten-Step Blueprint for Moving Past Mass Incarceration

Michael Tonry

University of Minnesota

Summary

When and if the will to roll back mass incarceration and to create just, fair, and

effective sentencing systems becomes manifest, the way forward is clear.

First, three-strikes, mandatory minimum sentence, and comparable laws should

be repealed.

Second, any three-strikes, mandatory minimum sentence, and comparable laws

that are not repealed should be substantially narrowed in scope and severity.

Third, any three-strikes, mandatory minimum sentence, and comparable laws that

are not repealed should be amended to include provisions authorizing judges to

impose some other sentence “in the interest of justice.”

Fourth, life-without-possibility-of-parole laws should be repealed or substantially

narrowed.

Fifth, truth-in-sentencing laws should be repealed.

Sixth, criminal codes should be amended to set substantially lower maximum

sentences scaled to the seriousness of crimes.

Seventh, every state that does not already have one should establish a sentencing

commission and promulgate presumptive sentencing guidelines.

Eighth, every state that does not already have one should establish a parole board

and every state should establish a parole guidelines system.

Ninth, every state and the federal government should reduce its combined rate of

jail and prison confinement to half its 2014 level by 2020.

Tenth, every state should enact legislation making all prisoners serving fixed terms

longer than 5 years, or indeterminate terms, eligible for consideration for release at

the expiration of 5 years, and making all prisoners 35 years of age or older eligible

for consideration for release after serving 3 years.

Direct correspondence to Michael Tonry, University of Minnesota, Walter F. Mondale Hall, 229-19th Avenue

South, Minneapolis, MN 55455 (e-mail: tonry001@umn.edu).

DOI:10.1111/1745-9133.12097 C2014 American Society of Criminology 503

Criminology & Public Policy rVolume 13 rIssue 4

Research Article Remodeling American Sentencing

These proposals are evidence-based and mostly technocratic. Those calling for prison

population targets and reducing the lengths of sentences being served may seem bold to

some. Relative to the problems they address, they are modest and partial. Decreasing

rates of imprisonment by half in the United States, a country with comparatively low

crime rates, to a level that will remain 3 to 3.5 times those of other developed Western

countries, can hardly be considered overly ambitious.

Keywords

sentencing reform, mass incarceration, principled sentencing, evidence-based sentencing

It is difficult to believe that anyone, even in their most moralistic, politically motivated,

socially fraught moments, foresaw or would have chosen the criminal justice systems

Americans have in 2014. No one who remembers being a teenager,or being the parent

of one, can really want to send 17-, 18-, or 19-year-old drug sellers to prison for decades for

being stupid, impulsive, greedy, or unduly swayedby peers. No one can really believe it was

right that 1 in 13 young Black men spent the night in a state or federal prison on the day

these words were written; many others were in county jails. No one can really believe that

anyone except, possibly, people who have committed horrific murders should be serving

prison sentences of life without the possibility of parole. No one can really believe it is

a Good Thing that time in prison became a predictable part of the life cycle for several

generations of disadvantaged minority men, that the United States locks up seven to ten

times more of its citizens than do other Western countries, or that many states spend more

on prisons than on higher education.

Most of those things happened because American policy makers in the 1980s and

early 1990s stopped thinking much about the criminal law as an institution primarily

aimed at reinforcing fundamental social norms and responding responsibly, proportion-

ately, and parsimoniously to their breach. The criminal law and sentencing became means

to other ends such as winning elections, fighting cultural wars, and refusing to accept that

the United States had become a multiethnic and multiracial country. Evidence and main-

stream normative ideas about just punishments have been conspicuously absent from policy

making about sentencing since the mid-1980s. Something else has been driving policy

making.

A number of stories have been offered to explain what that something was. One focuses

on steep rises in crime rates, usually emphasizing homicide, which started in the 1960s and,

after intermediate fluctuations, began to fall steadily only in 1991. Americans became

angry, frightened, and insecure, creating an atmosphere of “populist punitivism” (Bottoms,

1995) or “penal populism” (Pratt, 2007). The rest, it is said, is obvious. Policy makers and

practitioners responded to public demands that something be done (Bennett, DiIulio, and

Walters, 1996; Ruth and Reitz, 2003; Zimring and Hawkins, 1999).

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