Making State Sentencing Policy More Responsive to Crime Rates

As prison rates in America begin to level off, attention has turned to changes in state-level sentencing policy. Even conservative businessmen in Texas are supporting reforms to send fewer non-violent offenders to prison. Observers are hopeful that “we’re now in a space where lawmakers are comfortable to make reforms to bring down [prison] populations.”However, reformers should not celebrate prematurely. According to The Sentencing Project, it would take 88 years at the current rate of decline for incarceration to return its 1980 level. Part of the problem is that sentencing laws are sticky. Legislators pass “tough on crime” sentencing reforms during crime crises, and the laws remain on the books even as crime rates decline. However, policymakers could make better use of a tool common in other types of lawmaking during crises: sunset provisions.

Mandatory sentencing is one major driver of mass incarceration. Massachusetts blazed the mandatory sentencing trail in 1974 by passing the Bartley-Fox law. The state was in the midst of a violent crime wave, and gun control was high on the policy agenda. Lawmakers advanced dozens of proposals, but the state’s powerful gun lobby blocked them all—even the moderate proposals that the lobby itself had initially helped to draft. All seemed lost for gun control advocates. However, at the eleventh hour in the 1974 legislative session, state house Speaker David M. Bartley proposed a final compromise bill: “Requiring a minimum mandatory jail sentence of one year, without suspension, probation or parole, for the unlicensed or unauthorized carrying of firearms, rifles or shotguns, loaded or unloaded, and strengthening the laws related thereto.” Bartley’s bill combined the desire to address gun violence with another policy priority at the time, reducing judicial discretion in sentencing. Gun control seemed legislatively impossible, but mandatory sentencing for carrying an illegal firearm targeted the crime problem while remaining palatable to the gun lobby. Other states followed Massachusetts’ example, and mandatory sentencing for minor weapons offenses became common.

The arc of Bartley-Fox is illustrative of sentencing policy more generally. The law was a response to a particular crime wave, but it stayed on the books long after crime rates fell. The accumulation of several such laws in response to temporarily heightened passions has contributed to the mismatch between crime rates and prison populations. Between 1975 and 2002, every state in the nation passed at least one new violent crime-related mandatory sentencing law. Seventeen states instituted determinate sentencing (abolishing discretionary parole), and twenty-eight passed truth-in-sentencing laws that require violent offenders to serve at least 85 percent of the sentence imposed.The current national decline in crime rates is unlikely to persist forever, and the U.S. will almost certainly experience crime waves in the future. Legislators will continue to pass harsh sentencing laws as long as they anticipate electoral rewards for doing so. However, it might be possible to make these laws less sticky. Sunset provisions deactivate laws after a set period of time, unless legislators take action to reauthorize them. Several prominent recent laws have come with sunset provisions. Most relevant to criminal justice is counterterrorism legislation. Acts of terrorism are unexpected crises that legislators believe require a quick and decisive policy response. However, many such responses, including the USA PATRIOT Act, have included sunset provisions to safeguard against unwise legislation by encouraging future deliberation in a policy setting less dominated by panic. Crime waves create a similar environment of panic, and legislative solutions to these crises ought to have similar safeguards.

If crime itself does not have an expiration date, why should sentencing laws that attempt to combat it? This objection would be more potent if crime rates and incarceration rates were at all correlated. However, over the past forty years, incarceration rates have soared whether crime rates were rising or falling. It is easy enough for a legislator to propose a mandatory sentencing law when crime rates rise. It is much more difficult to propose eliminating the penalty when rates fall again; if the decline reverses, the lawmaker becomes vulnerable to accusations of being “soft on crime.” Reelection-seeking lawmakers are risk averse, but it is easier to let a law expire than to actively work for its repeal. If mandatory sentencing laws are indeed inevitable during crime waves, such laws should come with sunset provisions, so that temporary passions do not create a permanent incarcerated underclass.