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| | Since the 1970's America's incarceration rate has quadrupled [11] and has recently surpassed 1% of the total population [12]. This paper will explore some factors in why this has come to pass, and proposes a measure we can take to spark reform in our system of punishment.
Two factors in the increase of the prison population. |
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< | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second, is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system. |
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> | In his book Harsh Punishment [11], James Q. Whitman discusses how a sharp increase in the severity of two aspects of American punishment contribute to the increase in the incarceration rate. First is the increase in offenses demanding prison time, including drug offenses and other nonviolent crimes. Second is a dramatic increase in the length of sentences for inmates, which are so disproportionate to Europe that American inmates serve sentences roughly five to ten times that of their European counterparts. Thus, a factor in the rise of the prison poplulation is the escalation in the harshness of our criminal justice system. |
| | Why has our punishment become harsh? The outrage dynamic and moral panic. |
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< | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. |
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> | To answer this question it is useful to examine the mechanisms that make criminal laws in a democratic society. The outrage dynamic, proposed by Oliver MacDonagh [8] and applied to the creation of criminal laws by Philip Pettit [10] identifies a cycle by which behavior becomes criminal, and punishments become harsher. First, an example or examples of the 'evil' behavior is reported. Second, moral outrage is shown by groups in the population. Third, the authorities react to the pressure applied by the groups and “legislate the evil out of existence“ [8]. The fourth stage is a report that the evil has not been eradicated by the legislation, leading to outrage which which begins the process anew, leading to steeper penalties. |
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< | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but the increase of punishments corresponding to the behavior. |
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> | This understanding of how criminal laws are made is confirmed by Erich Goode and Nachman Ben-Yehuda who discuss a similar cycle in their book Moral Panics. Moral panics, coined by Stanley Cohen [1], are a societal drama which follow a similar script to the outrage dynamic, with the media outlets, population, political authorities and 'evil' playing similar roles. Goode and Ben-Yehuda explore a number of moral panics that lead to criminalizing of behavior including marijuana use and the sexual psychopath laws of the 1930's to 1950's [5]. In the latter case it is not the criminalization of behavior that occured but an increase of punishments corresponding to the behavior. |
| | These models illustrate a problem with how criminal laws are made. There are common events that easily shift the harshness of penalties upwards, but there is little force mobilizing the population to diminish penalties.
Proportionality in sentencing, using weak or limited retributivism as a constitutional cap on penalties.
One of the purposes of our constitution is to protect the minorities rights against the will of the majority. Thus, nothing short of a constitutional guarantee that punishment and pain inflicted by the government must not be disproportionate to the criminal offense will be able to protect citizens from punishments easily ratcheted up by social events, but not easily ratcheted down. |
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< | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of 5 years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. |
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> | Proportionality is at once a difficult and easy concept to define. Proportionality feels intuitive. We would all agree that a two-hundred dollar fine for murder is too lenient or that a sentence of five years for jay walking is disproportionate to the point where it offends our sense of justice. However, when we attempt to circumscribe exactly what proportional means definition alludes us. |
| | Part of the problem is answering the question of what ends the proportionality serves. Proportionality can serve deterrent principals by punishing only enough to deter the criminal behavior, rehabilitation principals by punishing no more than necessary so that the criminal understands the harm that she has committed, or retributivism principals by punishing until society believes that the scales of justice are even for the offense [2]. |