CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 21, 2020

Bagaric & Svilar on Hard-Time Sentencing Discounts

Mirko Bagaric and Jen Svilar (Swinburne Law School and University of Tennessee, Knoxville, College of Law, Students) have posted The Cruelty of Supermax Detention and the Case for a Hard-Time Sentencing Discount: A Pragmatic Solution to a Moral Shortcoming Which Is Otherwise Unlikely to Be Fixed (Santa Clara Law Review, Vol. 60, No. 1, 2020) on SSRN. Here is the abstract:
We should send offenders to prison as punishment, not for punishment. This principle is currently being violated in relation to approximately 60,000 offenders who are caged in ‘supermax’ prison conditions in the United States. Many of these prisoners spend up to 23 years in a small cell with no contact with any person. The conditions are traumatic. Emerging evidence demonstrates that these conditions cause considerable psychological and physical harm to prisoners. Understandably, there are growing calls to abolish confinement of this nature. However, there are no signs that abolition of supermax conditions will occur soon. Despite this, it is incontestable that the deprivation experienced by prisoners can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined. Prisoners subjected to supermax conditions suffer considerably more than those in conventional prison conditions. In this Article, we make recommendations regarding the manner in which prison conditions should impact the length of a prison term. We suggest that for most prisoners, every day spent in supermax conditions should result in two days’ credit towards the expiration of the prison term.
Hard-time credits are justified by the principle of proportionality, which stipulates that the seriousness of the crime should be matched by the hardship of the penalty. The main cohort of prisoners that should not be eligible for hard time credits are serious sexual and violent offenders who are at risk of re-offending, as determined by the application of a risk assessment instrument. Infringement of the proportionality principle is justified in these circumstances because of the more pressing need to pursue the ultimate aim of sentencing: community protection. Providing hard-time credits for most prisoners who are forced to endure supermax conditions will not overcome the ethical problems associated with this form of detention—which are especially acute given that African American and Hispanic inmates are disproportionality subjected to supermax confinement. However, the reform proposed in this Article will provide a pragmatic solution to a considerable failing in our sentencing and prison systems and operate to make authorities less inclined to subject prisoners to cruel conditions in a manner that does not compromise community safety.

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