Abstract

Excerpted From: Eric Petterson, Mass Incarceration, Violent Crimes, and Lengthy Sentences: Using the Race-class Narrative as a Messaging Framework for Shortening Prison Sentences, 55 Saint Mary's Law Journal 475 (2024) (231 Footnotes) (Full Document)

The United States of America incarcerates nearly two million people, more than any other country in the world, at a rate of 565 people per 100,000 residents. Just fifty years ago, the incarceration rate was ninety-seven imprisoned people per 100,000 residents in the general population. The rate of incarceration increased over 500% in fifty years. Many scholars and criminal justice reform advocates cited these statistics while advocating for the need to end the War on Drugs. The need for criminal justice reform to address mass incarceration has grown in popularity; however, many people focus on the War on Drugs to the exclusion of other issues in the criminal legal system, even though only twenty percent of the incarcerated population is incarcerated on drug charges. In contrast, nearly half of all people imprisoned in prisons and jails are imprisoned for violent offenses. Releasing all drug offenders would still not solve America's over-incarceration problem. Since four out of five incarcerated people are behind bars for non-drug related offenses, we must address how America punishes other crimes to end mass incarceration.

Too often, states implementing criminal justice reforms exclude violent offenses, focusing instead on people convicted of nonserious, nonviolent, and nonsexual offenses--or “non, non, nons.” The staggering number of violent crime incarcerations is not due to the crime-rate, but to the overly long sentences given to people convicted of violent crimes. Many crimes defined as “violent” in the criminal legal system do not involve any physical harm, including purse snatching, manufacturing methamphetamine, burglary of an unoccupied dwelling, and stealing drugs. Yet violent offense convictions result in severe repercussions, including triggering mandatory minimums and three-strikes laws. Addressing “non, non, non” offenses is politically easier to do than addressing violent offenses, but both must be addressed to end mass incarceration.

This Article will examine America's unique use of extremely harsh and lengthy prison sentences and how these sentencing policies contributed to the rise of mass incarceration. First, this Article will examine the history of prisons and sentencing policy. It will explore how sentencing policy, “tough on crime” politics, and the mass media contributed to the rise of mass incarceration. Next, this Article will discuss how America's overreliance on extremely lengthy sentences makes us an outlier to the rest of the world. This Article will examine the literature on incarceration and lengthy sentences, arguing that lengthy sentences are not effective because they do not effectively deter crime, do not promote public safety, do not prevent reoffending, are unnecessary because people age out of crime, and are not favored by crime victims. It will propose reducing the lengths of sentences and shortening sentences based on the good behavior of incarcerated people. Lastly, this Article will propose a political messaging framework to promote criminal justice reforms.

The criminal legal system needs many reforms, but this Article will focus on capping maximum prison sentences at twenty years for adult offenders, at fifteen years for people up to age twenty-five, and shifting sentences for all other offenses proportionately downward. This Article proposes combining these maximum sentences with an expert review board that may order continued incarceration if an inmate poses an ongoing safety threat. In addition, this Article will argue for a good-time reform policy reducing someone's sentence by one day for every one day of good behavior while incarcerated. A Vera Institute analysis found these two reforms alone reduce incarceration by fifty-five percent.

The rise in mass incarceration is primarily attributable to policy reform rather than changes in crime rates. Politicians and the media brought about mass incarceration by using racist dog-whistle politics, fear mongering, and sensationalizing crime. As Michelle Alexander argued in The New Jim Crow, politicians and their enablers in the media used racism-based fear to facilitate mass incarceration and maintain a racial caste system. This effort was targeted towards controlling Black people, but once unleashed, has hurt people who are Black, white, and brown--especially if they are poor. Therefore, mass incarceration is more a political issue than a criminal issue and must be combatted with political messaging.

America's ruling elites historically use race-baiting as a divide-and-conquer tactic that ultimately hurts people of all races. “Tough on crime” politics is only one of many examples of this divide-and-conquer tactic. Such tactics must be countered by creating multi-racial coalitions across class lines to support the common good. This Article proposes using the Race-Class Narrative developed by Ian Haney Lopez, Heather McGhee, and Anat Shenker-Osorio to combat the fearmongering and divide-and-conquer tactics used to perpetuate our overly punitive criminal legal system. The Race-Class Narrative calls for a messaging framework identifying racism as a tool of division used by powerful elites that threaten all racial groups. The Race-Class Narrative project conducted polling and opinion research demonstrating the key to cross-racial solidarity and winning policy victories was addressing the connections between racial divisions and economic hardship. The Race-Class Narrative offers a messaging framework guided by four messaging principles: (1) “leading with values explicitly shared across our races, backgrounds, and genders”; (2) introducing the problem by naming specific actors “whose decisions violate our values” and their “motivation[s] for scapegoating” certain people and spreading division; (3) “combat[ing] cynicism by characterizing how victory is possible with ... collective action”; and (4) “clos[ing] with a unifying and positive vision for our future and how joining together gets us there.” This Article will propose a message using this framework to promote the two policy reforms mentioned earlier--capping sentence lengths and good-time reform--to move our country towards decarceration.

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The United States has reached a crisis point by incarcerating more people than any other country in the world. 5 Well-intentioned reformers advocate for scaling back mass incarceration by changing how this country treats nonviolent offenders. 6 To truly end mass incarceration, however, violent offenders cannot be excluded from criminal justice reforms since they make up nearly half of the people locked up in state and local jails and prisons. Lengthy sentences do not promote public safety because they lock up people beyond the age they are likely to commit another crime; they do not effectively deter crime; people convicted of violent offenses have low recidivism rates; and, lengthy sentences are not responsive to the actual wishes of victims of violent crimes. 7 Capping prison sentences at twenty years for adults and at fifteen years for people under the age of twenty-five, and allowing incarcerated people to earn one day off their sentence for every day of good behavior are two reforms that can potentially reduce the incarcerated population by 60%. 8 Other countries across the world incarcerate far fewer people for far shorter periods than the United States, with no decrease in public safety. 9

Skeptics may argue that reducing prison sentences for violent offenders is a naïve fantasy that will never happen in the United States. The current justice system seems intractable and immune to change. However, the history of prisons and sentencing in the United States demonstrates that things are not the way they have always been or will be. The purpose of incarceration has changed over time, and therefore, we can change the purpose of our current prison system to suit our society's needs better. Ursula K. Le Guin aptly noted the ability of a society to change itself: “[I]ts power seems inescapable--but then, so did the divine right of kings. Any human power can be resisted and changed by human beings.” 0