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Brennan Center Asks: “How Many Americans Are Unnecessarily Incarcerated?”

by Derek Gilna

After three years of research, the highly-respected, non-partisan Brennan Center for Justice at New York University’s School of Law published an extensive report in December 2016 which concluded that while “mass incarceration has emerged as an urgent national issue to be addressed, the reforms currently offered are dwarfed by the scale of the problem. The country needs bolder solutions.”

The Brennan Center noted that of the 1.46 million prisoners in state and federal facilities serving time for 370 different categories of crime, “many ... are currently incarcerated without a sufficient public safety rationale ... we propose a new, alternative framework for sentencing grounded in the science of public safety and rehabilitation ... replaced with broad judicial discretion.”

In fact, the report found fully 39% of the state and federal prison population, or some 576,000 prisoners, are incarcerated for little compelling public safety reason.

In lieu of generally harsh guideline sentences, which, on the federal level, are arguably “enhanced” by judge-found facts to become even harsher, the Brennan Center “proposes a new solution, building on these past proposals. We advocate that today’s sentencing laws should change to provide default sentences that are proportional to the specific crime committed and in line with social science research, instead of based on conjecture.”

Coming from an organization that often consults for state and federal prison officials, this counts as unsubtle criticism and a fact-based indictment of a flawed justice system that piecemeal reforms have only slightly improved.

Judges, the report suggests, should weigh the seriousness of the crime, victim impact, the offender’s intent and risk of future recidivism. Judges should also take into account that a “2007 National Bureau of Economic Research study found that prison stays longer than 20 months had ‘close to no effect’ on reducing commission of certain crimes upon release.”

The Brennan Center made several recommendations for improving the criminal justice system, including 1) eliminating incarceration for “lower-level crimes barring exceptional circumstances; 2) reducing “sentence minimums and maximums”; 3) applying such reforms retroactively; and 4) encouraging prosecutors to use their discretion to “seek alternatives to incarceration,” which together would save an estimated $20 billion annually that is presently wasted on unnecessary imprisonment.

“This approach is grounded in the premise that the first principle of 21st century sentencing should be to protect public safety, and that sentences should levy the most effective, proportional, and cost-efficient sanction to achieve that goal,” said Inimai Chettiar, who directs the Brennan Center’s Justice Program.

The report also criticized the current practice of using the correctional system to deal with people who are mentally ill. Unfortunately, it stated, prisons are not equipped to properly treat the estimated 79% of prisoners who have either mental health issues, substance abuse problems or both, nor those with physical medical issues.

The Brennan Center concluded that “using prison as a knee-jerk reaction to crime devastates families and communities, but many of today’s overly punitive prison sentences produce little public safety benefits ... many prisoners could serve less time in prison with similar public safety results.” 



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