Tuesday, April 19, 2011
The criminal justice system is undergoing a massive jolt and potential transformation because of a perfect storm of severe budgetary shortfalls and courts awakening to the role of checking penal severity. A wave of reforms is sweeping the states as budgetary woes are leading to measures once virtually impossible or very difficult because of the political risk of looking soft on crime such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences. The social meaning of ameliorating penal harshness is being redefined as a way to curb wasteful and destructive spending rather than being soft on criminals and garnering bipartisan support among conservative and liberal proponents. On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review in the noncapital context and granted appeal to consider the power of a three-judge court to order California to reduce its prison population and consider alternatives to incarceration. This article explores the future of penal law and theory after the turn to budget-cut criminal justice reform and the awakening of courts at the tipping point where the fiscal and human costs of maintaining the highest per capita incarceration rate in the world have become unsustainable.
The article argues that in this important historical moment, we need long-term guides beyond emergency-response for sustainable penal law and policy reform and a successful jolt out of incapacitation stagnation. We have a fomentation of reforms without orienting theory – short-term reactions to the unbearable rather than sustainable long-term reorientation. The article lays the foundation for thinking beyond emergency-response by theorizing a turn to rehabilitation pragmatism and penal impact analysis in criminal legislation and politics. The article also sounds a caution about the need to ensure that the selective approach towards picking who benefits from rehabilitative pragmatism helps address rather than aggravate inequities in who bears the burdens of penal harshness and who benefits from measures of mercy.