Rethinking Punishment in the Era of Mass Incarceration

The Certainty of Punishment and the Proportionality of Incarceration
(p. 71) Leniency and Proportionality
Thus far, I have adverted to Beccaria’s first principle and to his justification of punishment: However. Beccaria’s On Crimes and Punishments is a rhetorically complicated essay. The text presupposes an audience that is receptive to the harsh retributivism of the 18th century and he supports the use of corporal and capital punishment. In Chapter 28—well into the book, and after much preparation for the recalcitrant reader—Beccaria declares that the death penalty is useless and inhumane. He argues that extent of punishment, not intensity, is the chief deterrent. However, he has said earlier in the book that shorter and more certain sentences are better deterrents than long, indeterminate, and uncertain sentences. Combining the arguments, we find that criminal justice systems should reject capital and corporal punishment, and that they can substitute short-but-certain punishment that is both swift and proportionate.
…
(p. 74) To make my case I argue that courts and corrections should promote certainty but not severity—not certain and disproportionately harsh punishment, and especially not severe punishment for minor or nonviolent offenses but certainty about when an act cannot be done, and what will happen to the offender, both during and after punishment, as a result of the actus reus. In light of Beccaria’s complex rhetorical strategy, which replaces capital punishment with incarceration, I accept Beccaria’s logic and further liberalize his argument: why long, harsh, and possibly degrading incarceration if other proportional, swift, and certain alternatives exist?
…
(p. 75) Problem Areas and Suggestions for Reform
The basic policy that I suggest, and justify under Beccaria’s logic, is expanded use of “quick dips,” or short, graduated sanctions that are currently used for probation violations. In fact, those familiar with graduated sanctions will recognize the watchwords of this approach as “Beccarian”: graduated rewards and sanctions should be swift, certain, and proportional to be effective (Paternoster 2010). These short, punitive sentences provide an alternative to probation revocation. The approach may not rescale well to deal with violent person crimes. It also abstracts from enforcement questions, because it is typically applied to probation violators who have been caught in a probation violation because they are already under supervision. However, if swift, short, and certain sentences deter probation violators, then we should consider whether this set of secondary principles also satisfies a retributive public. I return to this question in my conclusion.
In the following short sections, I highlight some of the areas in which the American criminal justice system fails to meet the standards of unerringness and leniency introduced above, and I suggest some reforms that may provide a more principled way of achieving leniency through unerringness and proportionality. My suggestion is that American justice has become too enamored with the wrong type of certainty, but that there are some fixes that can be instituted to achieve the right kind of leniency.
Fines or Short, Graduated Sentences
Above, I have noted the Beccarian defense of custodial sentences of long duration. Beccaria also argues that immediate, certain, and public punishments, even if they are small, can be effective. Is it possible to adapt this latter rationale to substitute fines (tariff fines or day fines) or short custodial sentences for long sentences? Instead of long sentences, which, as I argue in the conclusion, neither offenders nor the public think are effective deterrents or proportionate to the crime, perhaps graduated sanctions (quick dips) can be used to place individuals back in jail for minor probation violations—and as part of alternative sentences for misdemeanor and non-person felony offenses.
For example, a 2013 Kansas law instituted “quick dips” and other graduated steps in felony probation violation in order to achieve “swift and certain responses to offender non-compliance in the community” (Kansas Sentencing Commission; Kansas Legislative Research Department). As one official explains, before the law passed it was “one size fits all”: violating felony probation would result in the offender’s re-incarceration in prison. The 2013 law, justified by problems of economics and overcrowding but of use on a leniency rationale, forbids probation revocation for a first-offense parole violation, except in cases where the offender a) endangers the community or himself, or b) commits a new offense or absconds. Instead, the offender who violates probation is subject to a brief period of commitment in the county jail. These quick dips are 2–3 day sentences that can be imposed any number of times until a maximum of 18 days is reached. In the case of further violation after the first dip, the offender may be sentenced either to 120 days or 180 days. These Tier Two punishments once again offer an alternative to sending the convicted felon back to prison, although any further violation can result in full probation revocation.
There is some evidence across the several states experimenting with graduated rewards and sanctions that swift, certain, and short sentences can successfully contribute to “behavioral triage” (Hawken 2014; Hawken and Kleiman 2014). If short sentences are empirically viable alternatives to long, expensive custodial sentences in probation cases, then experiments with graduated sanctions should be extended-at least to misdemeanors, and perhaps to non-person felonies or to violent crimes.
…
Conclusion: Small-But-Certain Punishment
This chapter revisits early utilitarian arguments for leniency in punishment in order to put recent reformist agitation and public policy in contact with Beccarian thinking. I take Beccaria to be trying to shift opinion towards an initially unpalatable leniency and away from sanguinary punishment. Beccaria argues that the drudgery of a sentence at hard labor has more deterrent value, by virtue of its long duration, than fleeting but intense corporal or capital punishment. However, small interventions, when they are certain and unerring, also have larger deterrent effects than uncertain future punishment. With this in mind, it is possible to draw out the implications of Beccaria’s argument, or, if he would stop short of these implications, to liberalize his approach. Beccaria, for his part, makes the empirically contestable claim that corporal punishment must be used for person felonies so that the rich do not put a price on injuring the weak and. poor. It is also an empirical question whether short, graduated punishments are more humane and have greater deterrent force. These claims must be tested, but, at the least, the evidence suggests that “quick dips” are effective deterrents (Hawken 2014; Hawken and Kleiman 2009; American Probation and Parole Association: 6–9).