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Report Says Lawmakers Should Choose Alternatives to Incarceration

A new report from Human Rights Watch (HRW) argues that U.S. lawmakers and "tough-on-crime" advocates have relied on incarceration as a default approach to criminal justice for far too long, not only costing billions of taxpayer dollars and endless human potential but also strangling the most fundamental of human rights.

In the U.S., according to the HRW report, "prison is not a last resort, but all too often the first and only resort which lawmakers have required judges to impose for a vast number of crimes." For decades, the U.S. has "passed laws that discount other forms of punishment in favor of incarceration—it has been treated as the medicine that cures all ills," HRW says. "But in its embrace of incarceration, the country seems to have forgotten just how severe a punishment it is."

HRW reports that prison is imposed on 69% of state felony defendants and 87.6% of federal defendants across the country. In 2012, nearly a half million (444,591) people entered state and federal prisons with new convictions, in spite of data that shows slight decreases in the U.S. prison population in recent years.

One of every nine individuals in prison (159,000) is serving a life sentence, according to data from The Sentencing Project. Almost a third of those (49,081) is serving life without the possibility of parole (LWOP). And as of 2009, 2,500 people were serving LWOP sentences for crimes they committed before the age of 18.

HRW goes on to report that over half (53.4%) of prisoners in state and federal prisons with sentences of a year or more are serving time for nonviolent offenses. Life sentences, HRW says, are often given to recidivists for nonviolent property or drug crimes.

Although new court commitments to state prisons for drug offenders decreased by 22% between 2006 and 2011, drug offenders still represent 50.6% of federal prisoners and, according to the report, an estimated 21.3% of all prisoners in the U.S.

Racial disparities in the criminal justice system persist. For every 100,000 Americans in each race or gender group, there are 478 white males, 3,023 black males, 51 white females and 129 black females incarcerated in federal or state prison. In 2013, African Americans comprised 26.5% of newly-sentenced federal drug offenders, Hispanics comprised 47.9%, and whites were 22.4%. African Americans represented 42% of all persons entering state prison with new sentences for drug offenses in 2011, and whites represented 38%.

These flaws in the system have existed even since crime rates began to drastically fall more than 30 years ago. Though crime rates were declining, one national study, according to the HRW report, found that 88% of the increase in incarceration rates between 1980 and 1996 was "due to policymakers' decisions to lengthen sentences, impose incarceration (rather than, say, probation) for an ever- increasing number of offenses, and ensure offenders spend an increased amount of their sentence in prison (for example by reducing parole, 'good time,' and indeterminate sentencing)."

"Government's extraordinary power to criminalize and punish should be used sparingly," HRW argues, "and with due considerations for the principles of proportionality and respect for human dignity that human rights law requires."

Criminal sanctions are not "the only way to promote public welfare," HRW says. There are "non-governmental forces with the capacity to promote good conduct," according to the report, "such as families, communities, religions, and other social institutions."

Government can also make positive social investments, including substance abuse and mental health treatment, to "strengthen families, communities, enhance public education, and create jobs."

The consequences of criminalization, HRW argues, are too severe to not consider alternatives.

"To be consistent with international human rights, punishment must be no more severe than needed to accomplish its ends," including retribution, incapacitation, deterrence and rehabilitation, the report says. Imprisonment "should be used only when no lesser sanction could be justified given the nature of the crime, and even then it only should be imposed for as long as necessary to further the purposes of punishment."

To lower rates of incarceration for nonviolent crimes, HRW recommends that, first, lawmakers should ensure proportional sentences. Create sentencing commissions, if necessary, to determine appropriate punishments, and stop sentencing individuals to lifetime imprisonment for nonviolent crimes.

HRW also contends that the Supreme Court's "refusal to strike down egregious sentences"—as it has rejected countless Eighth Amendment challenges to mandatory-minimum and "three strikes" laws over the past 25 years—"should not be taken as a green light to legislators to ignore basic tenets of criminal justice and human rights."

Some states, according to HRW, have begun to reform mandatory minimum laws. In 2012, Massachusetts Gov. Deval Patrick signed into law a sentencing reform bill that shortened mandatory minimum sentences for various drug offenses. In California, an "overwhelming majority" of voters, HRW reported, approved Proposition 36 in November 2012, which limits the reach of the state's "three strikes" law.

In August 2013, U.S. Attorney General Eric Holder instructed federal prosecutors to avoid charging certain low-level nonviolent offenders with offenses carrying mandatory-minimum sentences and to avoid seeking mandatory sentencing enhancements based on prior convictions unless the defendant's conduct warranted such severe sanctions.

Regarding juvenile justice and drug policy reforms, HRW spotlighted West Virginia, which in March 2014 abolished life without parole sentences for anyone under the age of 18 and established that every child convicted in adult court will be eligible for parole after serving 15 years.

U.S. lawmakers, meanwhile, should promote drug policies that "respect liberty, autonomy and privacy," HRW says "Promoting particular visions of proper private behavior, in the absence of harm to others, is not a legitimate purpose for criminalization. Even if a credible case could be made that the government has a legitimate public health interest in curtailing the use of certain currently illegal substances, penal laws punishing private drug use fail the tests of proportionality and necessity."

Criminal laws should also be amended to end "unwarranted racial disparities due to drug law enforcement practices," while criminal sanctions for immigration offenses should be reduced by reforming illegal entry and re-entry prosecutions, the report concluded.

"As the growing bipartisan embrace of criminal justice reform indicates," HRW says, "protecting public safety, enhancing human dignity, and promoting the human right to liberty are mutually achievable goals."

Source: ”Nation Behind Bars: A Human Rights Solution," Human Rights Watch (May 2014)

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