IV. Reconstitute Sentencing Commissions

To many who dream of weaning our criminal justice system away from mass incarceration, the gold standard of reform is the establishment of a sentencing commission with authority to rescale the overall use of imprisonment, and considering discretion over imprisonment. There is much to be said in favor of a comprehensive approach as opposed to the often stealth and ad hoc strategies that have thus far been relied on to reduce prison populations in California and nationally. But a sentencing commission constituted under present conditions would almost certainly reflect the hegemony of law enforcement agencies and their official victim representative organizations that have dominated sentencing policy during the war on crime. A sentencing commission organized to meet the current perspective would likely entrench mass incarceration, minus a few unsustainable and deeply unpopular aspects of the war on drugs. The result would be what I've already called mass incarceration lite.

A sentencing commission or another vehicle for comprehensive legislative reform of sentencing laws needs to be infused, either internally or by a parallel body, by public investigation of mass incarceration in each state to understand its causes and consequences for each community. It took activists more than thirty years to get the U.S. government at the highest levels to discuss the human rights dimension of the wartime internment of Japanese citizens and residents, and more than forty years for final acknowledgment of that wrong and a measure of financial compensation. A commission was appointed and made important public findings about the causes and consequences of internment.

All of these elements are suggestive of what would be needed to make sure that a sentencing commission does not become a face-lift for mass incarceration. A commission must be charged with taking public testimony about the context of mass incarceration's rise, including peaks of violent crime in the early 1970s and early 1990s, and encouraged to recommend specific features of sentencing reform necessary to make sure mass incarceration is truly rooted out and not simply pasted over. This would include identifying necessary institutional reforms to protect against future moments when wartime or warlike hysteria makes mass violations of human rights temporarily palatable.

South Africa's much discussed Truth and Reconciliation Commission provides an important model for some of the goals that such a mass incarceration commission in each state should have, although without some of the trickiest legal features of the latter (e.g., the power to grant effective legal immunity). These commissions would have power to cut through the intellectual security perimeters states continue to maintain around prisons, and allow prisoners, including those in the deepest security units, the opportunity to testify publically and without chance of reprisal.