Bringing Sentencing Into The 21st Century: Closing The Gap Between Practice And Knowledge By Introducing Expertise Into Sentencing Law

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Sentencing law is the area of law where the state acts in its most coercive and authoritative manner against its citizens. It is fundamentally broken. There is no tenable rationale that can justify the shocking reality that there are currently more than two million Americans in prisons and local jails. The rate of incarceration in the United States is the highest on earth and by a considerable margin, even when compared to other developed countries, most of which imprison their citizens at more than four times the world average. It is apparent from a consideration of imprisonment and severity-weighted crime rates that between 1983 and 2013 the United States became 165% more punitive.

The most pressing and important issue relating to sentencing law and practice is its continued disregard of expert knowledge and empirical evidence. Sentencing is the area of law where there is the greatest gap between practice and what knowledge tells us can be achieved. All other social institutions and areas of learning, such as medicine, engineering, and education, readily embrace and change their practices in response to new learning that demonstrates more efficient and effective ways of achieving desirable outcomes. In sentencing, however, the dominant practices and reforms made in the last four decades, which are responsible for the mass incarceration crisis, have been implemented despite voluminous, largely academic, literature exposing their problems. Empirical evidence highlights that key sentencing objectives that have been invoked to justify heavier penalties, such as marginal general deterrence and specific deterrence, are flawed, yet they remain central goals of American sentencing systems.

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