Become a Patron! 


Anne R. Traum

Abstracted from: Anne R. Traum, Mass Incarceration at Sentencing, 64 Hastings Law Journal 423 (February, 2013) (313 Footnotes Omitted)


What can courts do to redress mass incarceration? The term mass incarceration refers to high incarceration rates concentrated within disadvantaged communities, and its harms include the destabilizing impacts of imprisonment on the inmate, his family, and his community during and after the prison term. Scholarly attention on mass incarceration has focused on its causes and impacts, as well as on policy reforms intended to slow or reverse the trend. Few have articulated the aim of this Article: a pathway for redressing mass incarceration in the courts within a criminal case. Situating mass incarceration analysis as a concern within a criminal case may not achieve what legislative reform could do, but it offers an approach for courts to redress mass incarceration under existing legal structures.

This Article argues that courts have the authority to consider the harms of mass incarceration at criminal sentencing under existing law and proposes measures to enhance court capacity to recognize and minimize those harms. Courts are on the front line of deciding who goes to prison and for how long, and they routinely tailor punishment based on individualized factors and systemic concerns, including fairness and public safety. Mass incarceration harms are relevant to the defendants' history and the systemic purposes of sentencing, including whether the sentence will enhance public safety and foster respect for the law. Incorporating analysis of mass incarceration harms analysis at sentencing would build on courts' sentencing expertise and add an important dimension to the sentencing justification. With proper information and guidance, courts could tailor sentences with an eye toward decreasing the harms of mass incarceration.

Part I describes some of the causes and harms of mass incarceration. The criminal justice system has in the past three decades increasingly relied on incarceration as a form of punishment, resulting in many more people going to prison or jail and serving longer sentences. The harms of mass incarceration occur at the individual, family, and community levels, and they extend into the future after release from prison. By understanding these harms, courts may consider them when sentencing an individual defendant.

Part II argues that sentencing is the best time for courts to redress mass incarceration. All courts, state and federal, balance individual and systemic factors when tailoring a sentence to an individual defendant and routinely consider the four major purposes of sentencing (retribution, deterrence, incapacitation, rehabilitation), as well as proportionality. Part II argues that this traditional analysis can include mass incarceration impacts and that courts can individually tailor sentences to eliminate or mitigate such harms. This Part focuses on federal sentencing, which represents a small fraction of all criminal cases, but the analytical approach is broadly applicable to any sentence in which a court exercises discretion.

Part III discusses both how courts can consider mass incarceration impacts in federal sentencing and the judicial reforms that would aid this project.

* * *

Courts can address the problem of mass incarceration on a case-by-case basis at sentencing with the goal of imposing just punishment and minimizing the collateral impacts of incarceration on the defendant and others. Mass incarceration is a complex societal problem arising from both the cumulative impact of many individual criminal cases and the lasting impacts of incarceration on the defendant and his family, children, and community. Sentencing is the best opportunity for courts to address mass incarceration concerns because it allows courts to individualize punishment in light of broad systemic concerns, which federal courts must do under 18 U.S.C. §3553(a). Adding mass incarceration impacts to the sentencing analysis would enhance the court's understanding of the defendant and the real world consequences of his punishment, encourage respect for the law, reduce unnecessary incarceration, and minimize its harms, especially in those communities debilitated by incarceration. Although the systemic problem of mass incarceration may ultimately be redressed only through systemic reform, courts do not have to wait. They can and should address mass incarceration at sentencing under existing legal frameworks with minimal changes to legal doctrine.



Associate Professor, William S. Boyd School of Law, University of Nevada, Las Vegas.