NOTHING SEEMINGLY WORKS IN SENTENCING: NOT MANDATORY PENALTIES; NOT DISCRETIONARY PENALTIES—BUT SCIENCE HAS THE ANSWER

MIRKO BAGARIC; Professor, Dean of Law, Swinburne University, Melbourne. GABRIELLE WOLF; Associate Professor, Deakin University, Melbourne. DANIEL MCCORD; J.D. 2020, Northwestern University, Pritzker School of Law.

Sentencing is undergoing significant reform in the United States. The main catalyst for this shift is the mass incarceration crisis that has developed over the past four decades, and has resulted in the United States becoming the most punitive nation on Earth, and by an extremely large margin. The financial cost of imprisoning more than two million Americans, who are disproportionately from African-American and Latino communities, has become unsustainable. The human toll of mass incarceration, including the fragmentation of families and communities, is also intolerable. Moreover, there are no meaningful benefits from mass incarceration; empirical data confirms that increasing the number of prisoners does not make the community safer.

Growing consciousness and acceptance of the failures of mass incarceration have resulted in the United States’ Federal Government and some state governments taking steps to attempt to reduce incarceration levels. These efforts have resulted in only a small reduction in prison numbers, however, because they have been piecemeal and lack an overarching framework. In order to reduce incarceration levels substantially, it is necessary to implement more wide-ranging reforms.

It is broadly assumed that one of the key reasons for the mass incarceration crisis is the proliferation of mandatory sentencing laws over the past five decades. Consequently, there is now considerable momentum to abolish many prescriptive sentences. Yet, in this Article, we contend that this proposal would be ineffective in lowering incarceration numbers significantly and would also not be jurisprudentially sound. This is evident from the example of Australia, which bears many political, social, legal and economic similarities to the United States, but has a very different sentencing methodology. In contrast to the United States, Australia has very few mandatory sentences. Rather, Australian courts have wide-ranging discretion to impose sentences that accord “individualized justice” in the sense that they are tailored to the particular crime and individual offender. Notwithstanding the differences between the Australian and United States sentencing systems, Australia is following the United States’ trend in increasing incarceration; prison numbers in Australia have tripled in the past three decades.

Thus, the United States’ experience demonstrates that mandatory sentences can lead to increased prison numbers. What is less obvious to American lawmakers, jurists, and judges, but is clear from the Australian experience, is that discretionary sentencing can result in the same outcome. It is therefore erroneous to presume that a principled and efficient solution to the mass incarceration crisis would involve shifting from mandatory to discretionary sentencing. In this Article, we highlight the unsatisfactory state of sentencing and criminal justice in Australia, while acknowledging that this is not caused solely by its discretionary sentencing methodology.

We propose that a more effective solution to the mass incarceration crisis would entail the following three key reforms: (i) ensure that the harshness of the penalties that are imposed are proportionate to the harm caused by the offenses; (ii) implement mechanisms that will accurately predict whether offenders are likely to reoffend; and (iii) draw on technological advances to develop a new sanction that is cheaper and more humane than prison and can more effectively monitor in real time offenders’ locations and actions.

In the next part of this Article, we provide an overview of the United States sentencing system and analyze the factors that have led to the mass incarceration crisis. This is necessary in order to contextualize the reform proposals in this Article. This is followed in Part II by an overview of the Australian sentencing system and a discussion of the present growth in incarceration numbers in that country. This discussion provides the backdrop to our argument that abolishing or reducing mandatory sentencing provisions in the United States will, alone, do little to alleviate the incarceration problem. In Part III, we advance our proposed solution to the United States’ incarceration crisis. This has three main limbs. As indicated above, the first involves setting penalties at levels that are commensurate with the harm caused by the offenses committed. The second requires the implementation of a methodology to assist courts to accurately determine offenders’ likelihood of reoffending. The third proposes developing a new sanction that uses surveillance and sensor technology to monitor the movements and actions of offenders who are not incarcerated. We summarize our reform proposals in the conclusion [Read entire Article here].