...mass incarceration—which also includes about 800,000 white and Asian males, as well as over 100,000 women (most of whom committed nonviolent offenses)—is the product of statutes that were enacted, beginning in the 1970s, with the twin purposes of lowering crime rates in general and deterring the drug trade in particular. These laws imposed mandatory minimum terms of imprisonment on many first offenders. They propounded sentencing guidelines that initially mandated, and still recommend, substantial prison terms for many other offenders. And they required lifetime imprisonment for many recidivists. These laws also substantially deprived judges of sentencing discretion and effectively guaranteed imprisonment for many offenders who would have previously received probation or deferred prosecution, or who would have been sent to drug treatment or mental health programs rather than prison.
The unavoidable question is whether these laws have succeeded in reducing crime. Certainly crime rates have come down substantially from the very high levels of the 1970s and 1980s that gave rise to them. Overall, crime rates have been cut nearly in half since they reached their peak in 1991, and they are now at levels not seen in many decades. A simple but powerful argument can be made that, by locking up for extended periods the people who are most likely to commit crimes, we have both incapacitated those who would otherwise be recidivists and deterred still others from committing crimes in the first place.
But is this true? The honest answer is that we don’t know. And it is this uncertainty that makes changing the status quo so difficult: for, the argument goes, why tamper with what seems to be working unless we know that it isn’t working?
...So where in all this stands the judiciary? In some ways, this should be our issue, not just because sentencing has historically been the prerogative of judges, but also because it is we judges who are forced to impose sentences that many of us feel are unjust and counterproductive. It is probably too much to ask state judges in the thirty-seven states where judges are elected to adopt a position that could be characterized as “soft on crime.” But what about the federal judiciary, which is protected by lifetime tenure from political retaliation and, according to most polls, is generally well regarded by the public as a whole?