No one can make a compelling case for why any particular crime deserves to be punished to a uniquely appropriate degree. However, that has not significantly inhibited the development of retributive theories of punishment. Modern writing makes the case not for absolutely deserved but for relatively deserved punishments e.
What is seen as important is that comparably serious crimes are punished in comparable ways, and that more serious ones are punished more severely than less serious ones and, of course, vice versa.
Proportionality thus provides guidance in setting relative levels of punishment across the full range of offenses, not the absolute level of severity of punishment for any particular offense.
Once crimes have been ranked according to their seriousness, the principle of proportionality offers a benchmark by which severity can be calibrated. There is wide public agreement about the relative seriousness of various crimes Roberts and Stalans, ; Darley ; Robinson, At this time, the committee believes, most people—including legislators, judges, and practitioners—share and support common intuitions about deserved punishments and proportionality.
However, this has not always been true in the United States, as we show in Chapter 3. The existence of widely held intuitions about retributive punishment were acknowledged but disparaged as old-fashioned and. Retributive ideas had little influence e. Proportionality in the contemporary sense was simply not seen as important. That view changed in the s when rehabilitation lost credibility and support as a primary aim of punishment.
Indeterminate sentencing fell from favor. Partly by default and partly because they fit with contemporaneous concerns for individual rights, procedural fairness, and transparency and accountability in government, retributive ideas became much more influential.
Absence of proportionality underlay major critiques of unwarranted disparities in indeterminate sentencing. Proportionality was seized upon as a plausible and principled basis for setting standards for sentencing by the developers of determinate sentencing laws and newly invented guidelines systems. Sentencing guidelines were widely adopted by state and local U. Ideas about proportionality provided a framework for creating comprehensive systems for setting sentences for criminal offenses.
See Chapter 3 for a discussion of these developments and the social science evidence concerning their largely positive effects. Well-designed, well-managed systems successfully reduced disparities, made sentencing predictable, made the system more transparent, and held judges accountable.
They also provided important tools for rational and economic policy making. Early guidelines systems in Minnesota, Washington, and Oregon not only made sentencing more consistent, predictable, and transparent, but also enhanced financial planning and correctional management Tonry, The gains in justice, rationality, and cost-effectiveness that proportionality ideas fostered ultimately proved short-lived.
The core ideas about justice and equal treatment that motivated support for proportionality were eroded by the adoption of mandatory minimum sentences, three-strikes laws, and other measures that readily imposed incarceration.
Such laws often disconnected the severity of punishments from the seriousness of crimes. Low-level drug crimes often were punished as severely as serious acts of violence. Under three strikes laws, some misdemeanors and minor property felonies were punished as severely as homicides, rapes, and robberies.
Jeremy Bentham , believed that the measure of a good law or policy is whether it maximizes human happiness.
If that test could not be satisfied, a principle of parsimony sometimes he used the term frugality forbade imposition of the punishment. Immanuel Kant was, of course, not a utilitarian and did not believe moral matters could be evaluated by weighing costs and benefits []. However, an idea akin to parsimony is central to classical retributive theories and to contemporary ideas about proportionality in punishment. The word parsimony is not used by retributivists but the underlying concept is the same: Any punishment that is more severe than is required to achieve valid and applicable purposes is to that extent morally unjustifiable.
It is excessive. The idea of parsimony as a restraint on punishment expresses the normative belief that infliction of pain or hardship on another human being is something that should be done, when it must be done, as little as possible. The legitimate social purposes served by punishment have come to be defined as retribution, deterrence, incapacitation, and rehabilitation.
Morris offered a highly influential account of punishment that takes parsimony seriously. Thus the presumption in every case should be that punishments should be imposed at the bottom end of the allowable range. Overcoming the presumption would require that good evidence be available to show that a more severe punishment would achieve demonstrable preventive effects.
It is reflected in the laws of states that have adopted systems of presumptive sentencing guidelines Frase, Parsimonious use of criminal punishments may have benefits larger than sparing offenders unnecessary suffering and saving public monies. Greater restraint in the use of punishment could, for example, advance public safety. Social justice may also be more enhanced by parsimonious use of punishment. The concentration of incarceration mainly among poor and minority men in severely disadvantaged communities means that the negative effects of incarceration, including diminution of the life chances of the children of those incarcerated, are also socially concentrated.
Throughout this report, we presented evidence showing that those incarcerated face risks to economic opportunities and well-being, and that family members and neighborhoods may also be affected.
Parsimonious use of punishment may not only minimize unnecessary use of penal sanctions including imprisonment, but also limit the negative and socially concentrated effects of incarceration, thereby expanding the distribution of rights, resources, and opportunities more broadly throughout U. The principle of citizenship is a basic tenet of jurisprudence and constitutional government. Citizenship denotes a core set of fundamental rights accruing to all persons by virtue of their membership in a political community.
Marshall describes how citizenship establishes basic civil rights to self-expression and recourse to the courts; political rights to the franchise; and in the modern era through social policy, a basic right.
Together, the rights of citizenship establish a minimum standard of human dignity and protections against state action that compromises, abridges, or undermines the capacity of citizens to exercise those rights. Incarceration tests the limits of citizenship. Penal confinement necessarily restricts freedom of action in ways that are experienced by no other citizens. The integrated strategy to prison reform can benefit immensely from the establishment and development of collaboration and partnerships with other UN agencies and other international and national organisations engaged in complementary programmes.
Read more There are three main issues that need to be taken into consideration in the context of pre-trial detention: firstly, pre-trial detention is overused in most countries worldwide and in many developing countries the size of the pre-trial prisoner population is larger than that of the convicted prisoner population. This situation contradicts the provisions in international standards, including ICCPR, that provide for the limited use of pre-trial detention, only when certain conditions are present.
Secondly, pre-trial detention is the period most open to abuse in the criminal justice process. Recognizing the particular vulnerability of pre-trial detainees, international human rights instruments provide for a large number of very specific safeguards to ensure that the rights of detainees are not abused, that they are not ill-treated and their access to justice not hindered. Thirdly, although pre-trial detainees should be presumed innocent until found guilty by a court of law, and treated as such, conditions in pre-trial detention are often much worse than those of prisons for convicted prisoners.
Therefore, improving access to justice, supporting legal and paralegal aid programmes, improving information management and cooperation between courts and prisons, to speed up the processing of cases, as well as assisting with the development of safeguards for pre-trial detainees, such as independent monitoring and inspection mechanisms, comprise important elements of UNODC's work in the field of penal reform. In order for a prison system to be managed in a fair and humane manner, national legislation, policies and practices must be guided by the international standards developed to protect the human rights of prisoners.
Prison authorities have a responsibility to ensure that the supervision and treatment of prisoners is in line with the rule of law, with respect to individuals' human rights, and that the period of imprisonment is used to prepare individuals for life outside prison following release.
But often national legislation and rules relating to the management of prisons are outdated and in need of reform. In many countries the prison department is under the authority of police or military institutions and managers and staff have received no specific training regarding prison management.
Staff morale is usually low and effective leadership to drive prison reform is lacking. Information collection and management systems are also very inadequate or non-existent in many prison systems worldwide, hindering the development of sound policies and strategies based on reliable, factual data.
UNODC can provide much assistance in reforming national legislation, developing training programmes for prison managers to improve their leadership role and staff to apply international standards and norms in their daily practice, and by contributing to the institutional capacity building of prison administrations. Overcrowding is a key concern in almost all prison systems worldwide, while punitive criminal policies, as well as a shortage of social protection services in the community, continue to contribute to the rapid growth of the prison population in many countries.
As mentioned earlier, overcrowding is the root cause of many human rights violations in prisons. Solutions to overcrowding need to be explored and implemented in almost all countries in which UNODC is operational.
While overcrowding can be temporarily decreased by building new prisons, practice shows that trying to overcome the harmful effects of prison overcrowding through the construction of new prisons does not provide a sustainable solution.
In addition, building new prisons and maintaining them is expensive, putting pressure on valuable resources. Instead, numerous international instruments recommend a rationalization in sentencing policy, including the wider use of alternatives to prison, aiming to reduce the number of people being isolated from society for long periods. The use of non-custodial sanctions and measures also reflects a fundamental change in the approach to crime, offenders and their place in society, changing the focus of penitentiary measures from punishment and isolation, to restorative justice and reintegration.
Register for a free account to start saving and receiving special member only perks. After decades of stability from the s to the early s, the rate of incarceration in the United States more than quadrupled in the past four decades.
MacArthur Foundation, to review evidence on the causes and consequences of these high incarceration rates and the implications of this evidence for public policy.
Our work encompassed research on, and analyses of, the proximate causes of the dramatic rise in the prison population and the societal dynamics that supported those proximate causes. Our analysis reviewed evidence of the effects of high rates of incarceration on public safety as well as those in prison, their families, and the communities from which these men and women originate and to which they return.
We also examined the effects on U. After assessing the evidence, the committee found that the normative principles that both limit and justify the use of incarceration as a response to crime were a necessary element of the analytical process. Public policy on the appropriate use of prison is not determined solely by weighing evidence of costs and benefits.
Rather, a combination of empirical findings and explicit normative commitments is required. Issues regarding criminal punishment necessarily involve ideas about justice, fairness, and just deserts.
Finally, we considered the practical implications of our conclusions for public policy and for research. From to , the state and federal prison populations that are the main focus of this study rose steadily, from about , to 1. In addition to the men and women serving prison time for felonies, another , are held daily in local jails. In recent years, the federal prison system has continued to expand, while the state incarceration rate has declined. Between and , more than half the states reduced their prison populations, and in 10 states the number of people incarcerated fell by 10 percent or more.
The U. Those who are incarcerated in U. They comprise mainly minority men under age 40, poorly educated, and often carrying additional deficits of drug and alcohol addiction, mental and physical illness, and a lack of work preparation or experience. Their criminal responsibility is real, but it is embedded in a context of social and economic disadvantage. More than half the prison population is black or Hispanic.
In , blacks were incarcerated at six times and Hispanics at three times the rate for non-Hispanic whites. The emergence of high incarceration rates has broad significance for U. By the time incarceration rates began to grow in the early s, U. Decades of rising crime accompanied a period of intense political conflict and a profound transformation of U. The problem. Crime and race were sometimes conflated in political conversation. In the s and s, a changed political climate provided the context for a series of policy choices.
Across all branches and levels of government, criminal processing and sentencing expanded the use of incarceration in a number of ways: prison time was increasingly required for lesser offenses; time served was significantly increased for violent crimes and for repeat offenders; and drug crimes, particularly street dealing in urban areas, became more severely policed and punished.
These changes in punishment policy were the main and proximate drivers of the growth in incarceration. In the s, the numbers of arrests and court caseloads increased, and prosecutors and judges became harsher in their charging and sentencing. In the s, convicted defendants became more likely to serve prison time. More than half of the growth in state imprisonment during this period was driven by the increased likelihood of incarceration given an arrest.
Arrest rates for drug offenses climbed in the s, and mandatory prison time for these offenses became more common in the s. During the s, the U. The Congress enacted such a law in These changes in sentencing reflected a consensus that viewed incarceration as a key instrument for crime control.
Yet over the four decades when incarceration rates steadily rose, U. The best single proximate explanation of the rise in incarceration is not rising crime rates, but the policy choices made by legislators to greatly increase the use of imprisonment as a response to crime.
Mandatory prison sentences, intensified enforcement of drug laws, and long sentences contributed not only to overall high rates of incarceration, but also especially to extraordinary rates of incarceration in black and Latino communities. Intensified enforcement of drug laws subjected blacks, more than whites, to new mandatory minimum sentences—despite lower levels of drug use and no higher demonstrated levels of trafficking among the black than the white population. Blacks had long been more likely than whites to be arrested for violence.
But three strikes, truth-in-sentencing, and related laws have likely increased sentences and time served for blacks more than whites. As a consequence, the absolute disparities in incarceration increased, and. This provided the context for a series of policy choices—across all branches and levels of government—that significantly increased sentence lengths, required prison time for minor offenses, and intensified punishment for drug crimes.
Relationships among incarceration, crime, sentencing policy, social inequality, and numerous other variables influencing the growth of incarceration are complex, change across time and place, and interact with each other. As a result, estimating the social consequences of high rates of incarceration, including the effects on crime, is extremely challenging.
Among the claims made is that such individuals are responsible for a very large proportion of violent crimes, especially homicides. It is, therefore, the job of federal prosecutors to seek the maximum penalties the law allows, especially longer prison terms for those involved in drug trafficking. For drug crimes, there is a call for more incarceration, not less. Yet, the vast majority of drug arrests are processed at the local level where federal practices are largely irrelevant. For example, city district attorneys, not federal prosecutors, do the charging.
After a felony conviction, offenders are sentenced to state prisons, not federal prisons. In addition, the vast majority of violent crimes are not related to drug use, even drug trafficking. The call for federal prosecutors to get tough on drug crimes is not based on the available evidence. An informed policy would call for sentences that are sure and swift, not more punitive, and that would be applied to the small fraction drug offenders whose illegal actions pose a substantial threat to public safety.
There would also be a clear acknowledgement that most drug offenders are not charged, tried and sentenced within the federal criminal justice system. If there is a problem, it is for the states to handle. Rossi, P. New York: Aldine De Gruyter. Sessions, J. Travis, J.
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