Lewis & Clark Law Review
First Page
489
Abstract
Anyone with even a remote interest in criminal justice was stunned by the “soft on crime” Republican Party advertisement at Super Bowl LIV in 2020, especially during a presidential election year. The United States of America has pursued an unrelenting, merciless “tough on crime” approach for half a century, resulting in it being the world’s largest incarcerator by a massive margin. It was an unshakable political ideology that “tough on crime” was a vote winner. This resulted in incarceration levels increasing fourfold in four decades, with more than two million Americans ultimately behind bars. Legal and criminology scholars had argued intensely—seemingly in vain—for decades that mass incarceration was a flawed policy. They highlighted that it was extremely expensive, caused excessive gratuitous suffering, and did not reduce the incidence of crime. Despite this, lawmakers refused to budge from the populist, harsh approach to dealing with crime and offenders. However, in one of the most striking policy shifts in recent American history, lawmakers have radically changed their approach to dealing with crime. They are now promulgating policies that will result in the release of offenders from prison, rather than sending more of them there. Especially remarkable is that it was the conservative Republican federal government, led by then-President Donald Trump (an advocate for “tough on crime” policies), that was most active and effective in reducing prison numbers. Thus, the United States is now moving towards a period of decarceration. This process has accelerated in response to the COVID-19 pandemic; some prisoners, especially older inmates, have been released early because they are at a heightened risk of COVID-19 infection in the close confines of prison. Particularly notable is that the number of incarcerated African Americans (who are overrepresented in prisons) has significantly declined in recent years. This Article explores the catalysts for this social and political phenomenon, which highlight the collective ability of the American community to turn on a dime, shift tack, and embrace intelligent policy. The correction to American criminal justice policy and practice that we are now witnessing is compelling evidence that, while the democratic system in the United States does not always result in sound policy choices, those decisions can change profoundly with time. This Article also identifies challenges that the United States will face as it attempts to craft and implement a less punitive response to crime. Thus, the main purpose of this Article is to establish a roadmap for introducing normatively sound and empirically valid sentencing reforms that can ensure that the current momentum of reducing prison numbers is not reversed.
Recommended Citation
Mirko Bagaric, Gabrielle Wolf, Daniel McCord, Brienna Bagaric & Nick Fischer,
American Exceptionalism at Its Finest: “Soft on Crime” Now a Vote-Winner in the World’s Largest Incarcerator,
25
Lewis & Clark L. Rev.
489
(2021).
Available at:
https://lawcommons.lclark.edu/lclr/vol25/iss2/5