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Reconsidering Early Release Georgetown J. of Law and Pub. Policy 2013

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ARTICLES
Clemency, Parole, Good-Time Credits, and
Crowded Prisons
Reconsidering Early Release
PAUL J. LARKIN, JR.*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

I. EARLY RELEASE MECHANISMS IN AMERICAN CRIMINAL LAW . . . . . .

5

A.

Clemency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

B.

Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

C. Good-time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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II. THE STATE OF CORRECTIONS TODAY . . . . . . . . . . . . . . . . . . . . . . .

11

A.

The Cost of Large-Scale Incarceration . . . . . . . . . . . . . . . .

12

B.

The Benefits of Large-Scale Incarceration . . . . . . . . . . . . . .

17

C. The Intended and Unintended Consequences of the Punitive
Approach to Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

1.

The Criticisms of Reliance on Incapacitation . . . . . . . . .

21

2.

The Case for Incapacitation . . . . . . . . . . . . . . . . . . . . .

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III. THE CASE FOR REVISITING EARLY RELEASE . . . . . . . . . . . . . . . . . .

30

A.

The Inevitable Return of Prisoners to the Community . . . . . .

30

B.

The Continuing Hope for Rehabilitation . . . . . . . . . . . . . . .

31

IV. EARLY RELEASE OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34

A.

The Unlikely Political Reawakening of Clemency . . . . . . . . .

34

B.

The Unlikely Political Resurrection of Parole . . . . . . . . . . .

36

* Paul J. Larkin, Jr., B.A. 1977 Washington & Lee University; J.D. 1980 Stanford Law School;
M.P.P. 2010 George Washington University; Senior Legal Fellow, The Heritage Foundation. The views
I express in this article are my own, and should not be construed as representing any official position of
The Heritage Foundation. I would like to thank Albert W. Alschuler, Daniel Dew, Paul Rosenzweig, and
Gavriel Swerling for their valuable comments on an earlier draft of this paper. Dan Dew and Katie Beck
provided valuable research assistance. Any errors are mine alone. © 2013, Paul J. Larkin, Jr.

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C. The Possible Creation of a Hybrid System . . . . . . . . . . . . . .

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D. The Possible Expansion of Good-Time Credit . . . . . . . . . . .

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION

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Committing crime always has been a risky business. The principal risk has
been getting caught. If convicted at a fair trial, a defendant may be sentenced to
whatever penalty is authorized by law.1 If the judge orders the offender to be
imprisoned, the government may confine him at a prison of its choosing for the
full term authorized by the relevant statute and judgment, which could be a very
lengthy period indeed.2
But American prisons do not have a sign over the gateway saying “Abandon
all hope, you who enter.”3 Historically, there were several mechanisms through
which many prisoners could gain an early release, such as executive clemency,
parole, and “good-time” (or good conduct) credits.4 No prisoner has a constitutional right to demand an early release via any of those devices,5 but the federal
and state governments have found them to be useful tools for penological,
fiscal, and humanitarian purposes.6

1. See, e.g., Chapman v. United States, 500 U.S. 453, 465 (1991); Meachum v. Fano, 427 U.S. 215,
224 (1976).
2. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Olim v. Wakinekona, 461 U.S. 238
(1983); Meachum, 427 U.S. at 224; Ex parte Karstendick, 93 U.S. 396, 398–99 (1876). There is an
exception for punishments that are cruel and unusual, but, outside of the unique context of capital
punishment, that exception does not often apply. See, e.g., Ewing v. California, 538 U.S. 11 (2003)
(rejecting an Eighth Amendment challenge to California’s “three-strikes” law); Harmelin v. Michigan,
501 U.S. 957 (1991) (rejecting an Eighth Amendment challenge to life sentence for drug trafficking).
3. DANTE ALIGHIERI, THE INFERNO canto III, l. 9, at 12 (Stanley Lombardo trans., Hackett 2009).
4. See infra text accompanying notes 16–67.
5. See, e.g., Swartout v. Cooke, 131 S. Ct. 859, 862 (2011); Greenholtz v. Inmates of Nebraska Penal
and Corr. Complex, 442 U.S. 1, 7 (1979); Meachum, 427 U.S. at 224.
6. See, e.g., Barber v. Thomas, 130 S. Ct. 2499 (2010) (good-time); Morrissey v. Brewer, 408 U.S.
471 (1972) (parole); PETER B. HOFFMAN, HISTORY OF THE FEDERAL PAROLE SYSTEM (2003); JOAN
PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY (2003). Options similar to
clemency, parole, and good-time credit are furloughs (viz., temporary release from confinement for a
specific need, e.g., a family member’s funeral), participation in work-release programs (viz., release
from confinement for the workday), residence in a halfway house (often used as a transition mechanism
for prisoners in the last year or months of a sentence), and compassionate release or medical parole
(e.g., early release for terminally ill prisoners). See, e.g., RONALD L. GOLDFARB & LINDA R. SINGER,
AFTER CONVICTION 257–58 (1973); PETERSILIA, supra, at 98–101; William W. Berry, III, Extraordinary
and Compelling: A Re-Examination of the Justifications for Compassionate Release, 68 MD. L. REV.
850 (2009). Those options are not generally available to prisoners, and they are far more limited in their
periods of release than the ones discussed in the text. See, e.g., FED. BUREAU OF PRISONS, CHANGE NOTICE
NO. 5050.46, PROGRAM STATEMENT CONCERNING COMPASSIONATE RELEASE; PROCEDURES FOR IMPLEMENTATION OF 18 U.S.C. 3582(c)(1)(A) & 4205(g) (1998) (compassionate release is only for prisoners with
extraordinary or extremely grave medical circumstances), http://www.bop.gov/policy/progstat/
5050_046.pdf .

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Over the last thirty years, however, society has cut back on its use of early
release. In fact, throughout that period, the operation of the criminal justice
system can be described by imagining two of Einstein’s trains moving in
parallel but opposite directions.7 On one track, we see a criminal justice system
that has sent an increasingly large number of offenders to state and federal
prisons. On the other track, we see those prisons returning a decreasingly small
number of inmates to society through early release. The engine driving each
train has been reliance on a punitive, incapacitative approach to sentencing.
Legislatures, responding to public calls for a tougher stance on crime, have
abandoned rehabilitation in favor of incapacitation as the principal justification
for punishment. Hoping to allay the public’s fear of crime, legislatures have
abolished discretionary sentencing and parole and, in their place, have adopted
so-called “truth-in-sentencing” laws, along with stiff punishments and mandatory minimum sentences for recidivists, drug offenders, and armed criminals.8
The penological, fiscal, and humanitarian considerations noted above may
soon demand that we reassess the utility of incapacitation as the primary
rationale for imprisonment. State and federal correctional facilities have become
swollen with prisoners.9 The cost of providing food, clothing, shelter, security,
and medical care has increased considerably over the last thirty years, and
shows no sign of abating. At some point, Congress and the states may find it
impossible to continue to fund the current rate of expenditures.10 The massive
payments required today to underwrite penological judgments made thirty years
ago could offer a powerful incentive to reexamine how well those decisions
have worked out and whether they still make sense today.
In that regard, consider the fact that states and the federal government have
begun to outsource prisoners to privately-owned and operated facilities, an old
7. See ALBERT EINSTEIN, RELATIVITY: THE SPECIAL AND THE GENERAL THEORY (1916).
8. As one criminologist has noted:
Soaring crime rates, especially in the inner cities, are the most obvious part of the explanation
[for the increase in imprisonment]. From 1960 to 1990, the overall U.S. crime rate increased
more than fivefold, the frequency of violent crime nearly quadrupled, and the murder rate
doubled. Drug use increased. The upsurge was widely blamed on lenient punishment, particularly for violent repeat offenders. Legislatures responded by passing “get tough” measures,
including sentencing guidelines (which required prison sentences for some offenders who in
the past might have been put on probation), so-called three-strikes-and-you’re-out laws (which
mandated prison terms for repeat offenders), mandatory minimum sentences (forcing judges
to impose fixed sentences regardless of mitigating factors), and truth-in-sentencing measures
(requiring inmates to serve a greater proportion of their imposed sentence before becoming
eligible for parole). These policy changes increased both the probability of going to prison if
convicted and the length of prison terms.
Joan Petersilia, Beyond the Prison Bubble, 35 WILSON Q. 52, 52–53 (2011).
9. “The U.S. prison system has exploded in size and economic impact during the past three decades,
due to a variety of factors including mandatory sentencing laws and tougher drug enforcement efforts.”
SUZANNE M. KIRCHHOFF, CONG. RESEARCH SERV., ECONOMIC ASPECTS OF PRISON GROWTH 15 (2010).
10. See H.R. REP. NO. 112-169, at 64 (2011) (“[D]espite a dramatic increase in corrections spending
over the past two decades, re-incarceration rates for people released from prison are largely unchanged.
This trend is both financially and socially unsustainable . . . .”).

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practice,11 yet one that might have been considered unthinkable only fifty years
ago, on the ground that it improperly delegates a core government function to a
private party.12 The rationale ordinarily given is that private businesses can run
an institution more efficiently than the government.13 Perhaps they are right.14
But if efficiency is to join incapacitation as one of the twin pillars of contemporary penological theory, the question arises whether we have reached the point
of diminishing marginal returns for our entire correctional system.15 If so, if the
marginal cost of incarcerating new prisoners outweighs the marginal social
benefit of their confinement, then we will need to decide which pillar will give
way. This article addresses that choice.
Part I starts by discussing the history and use of clemency, parole, and
good-time credits as an integral part of the correctional process. That part goes
on to outline the disappearance of executive clemency and the fall of parole and
early release options, as a more punitive approach to punishment drowned the
rehabilitative ideal that had served as the animating force of the criminal justice
system in the twentieth century. Part II explains where we are today after thirty

11. See, e.g., Richardson v. McKnight, 521 U.S. 399, 404–07 (1997) (discussing the English and
American history of the use of private prisons).
12. See, e.g., JAMES AUSTIN & GARRY COVENTRY, DEP’T OF JUSTICE, EMERGING ISSUES ON PRIVATIZED
PRISONS 8–11 (Feb. 2001), https://www.ncjrs.gov/pdffiles1/bja/181249.pdf; Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1392–94 (2003); Alexander Volokh, Developments in
the Law: The Law of Prisons, 115 HARV. L. REV. 1868, 1871 (2002). In 2005, private prisons were about
23% of adult correctional facilities, and in 2008 nearly 17% of federal prisoners were in such an
institution. KIRCHHOFF, supra note 9, at 15. Several of the unique issues posed by use of private prisons
have reached the Supreme Court. Compare Minneci v. Pollard, 132 S. Ct. 617 (2012) (refusing to create
an Eighth Amendment Bivens action against private individuals working at private prison), and Corr.
Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (refusing to create an Eighth Amendment Bivens action
against the corporation running a private prison), with Richardson v. McKnight, 521 U.S. 399 (1997)
(qualified immunity is not available for private prison guards).
13. See James F. Blumstein, et al., Do Government Agencies Respond to Market Pressures?
Evidence from Private Prisons, 15 VA. J. SOC. POL’Y & L. 446, 449 (2008); AUSTIN & COVENTRY, supra
note 12, at 15–17; KIRCHHOFF, supra note 9.
14. And perhaps they are not. See Richard Oppel, Jr., Private Prisons Found to Offer Little in Cost
Savings, N.Y. TIMES, May 18, 2011, at A1, available at http://www.nytimes.com/2011/05/19/us/
19prisons.html?_rϭ3&refϭus; AUSTIN & COVENTRY, supra note 12, at 22 (“There is no consensus
among academics and professionals in the field concerning the potential cost savings that privately
managed operators can provide . . . . The promises of 20-percent savings in operational costs have
simply not materialized.”).
15. “There is growing concern among policymakers across the political spectrum that corrections
policy may have reached a point of diminishing returns.” KIRCHHOFF, supra note 9, at 1. As University
of Chicago economist Steven Levitt put it:
“We know that harsher punishments lead to less crime, but we also know that the millionth
prisoner we lock up is a lot less dangerous to society than the first guy we lock up,” Dr. Levitt
said. “In the mid-1990s I concluded that the social benefits approximately equaled the costs of
incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think
we should be shrinking the prison population by at least one-third.”
John Tierney, Time and Punishment: For Lesser Crimes, Rethinking Life Behind Bars, N.Y. TIMES, Dec.
11, 2012, at A1, available at http://www.nytimes.com/2012/12/12/science/mandatory-prison-sentencesface-growing-skepticism.html?pagewantedϭ2&tntemail1ϭy&_rϭ3&emcϭtnt&pagewantedϭall&.

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years of a more severe approach to sentencing. That part also presents the
arguments for and against correctional reform. Finally, Part III address the
utility of some form of early release, however labelled, to address the problems
noted in Part II.
I. EARLY RELEASE MECHANISMS IN AMERICAN CRIMINAL LAW
A. Clemency
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The clemency power likely has existed as long as there have been chief
executives, monarchs, or tribal leaders.16 At common law, the King possessed
the pardon power,17 and the common law in this regard served as a doctrinal
basis for the adoption of clemency in this nation.18 The federal and state
constitutions19 generally lodge the pardon power20 (which includes the commutation power21) in the hands of the chief executive,22 whether a president or

16. The Code of Hammurabi included a clemency provision. JEFFREY P. CROUCH, THE PRESIDENTIAL
PARDON POWER 10–11 (2009). Greek and Roman rulers exercised that power as well. See id.; Matthew
27:15–23 (Pontius Pilate released Barabbas as an exercise in clemency during Passover). Of course,
those may not have been the earliest exercise of the clemency power. See Genesis 4:10–15 (After
making Cain, “a fugitive and a wanderer on the earth[,] . . . the Lord put a mark on Cain, lest any who
found him would attack him.”).
17. See, e.g., NAOMI D. HURNAND, THE KING’S PARDON FOR HOMICIDE (1970). For a history of the
common law and federal pardon power, see Hoffa v. Saxbe, 378 F. Supp. 1221, 1226–33 (D.D.C.
1974), and WILLARD H. HUMBERT, THE PARDONING POWER OF THE PRESIDENT (1941).
18. See United States v. Wilson, 32 U.S. 150, 160 (1833).
As this power had been exercised, from time immemorial, by the executive of that nation
whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into
their books for the rules prescribing the manner in which it is to be used by the person who
would avail himself of it.
Id.
19. Interestingly, the Articles of Confederation did not contain a federal pardon power. CROUCH,
supra note 16, at 14.
20. See U.S. Const. art. II, § 2, cl. 1; see also, e.g., Ohio Adult Parole Auth. v. Woodard, 523 U.S.
272 (1998) (state clemency); Conn. Bd. of Parsons v. Dumschat, 452 U.S. 458 (1981) (same); Biddle v.
Perovich, 274 U.S. 480, 486 (1926) (President’s pardon power); CROUCH, supra note 16; KATHLEEN
DEAN MOORE, PARDONS: JUSTICE, MERCY, AND THE PUBLIC INTEREST (1989); Paul Rosenzweig, Reflections
on the Atrophying Pardon Power, 102 J. CRIM. L. & CRIMINOLOGY 593 (2013).
21. See GOLDFARB & SINGER, supra note 6, at 343.
[P]resumably the [commutation] power is simply a lesser form of pardon. The power to
commute sentences has been held to be implicit in the general; grant of the pardoning power
in the states whose constitutions do not mention commutation and in the federal system . . . .
Mostly, [commutation] is used to allow prisoners with terminal illnesses to die out of prison,
to make prisoners eligible for parole and to avoid capital punishment.
Id. (footnote omitted). The clemency power can be exercised in any one (or more) of several different
ways: pardon, commutation, remission of fines or forfeiture of goods or money, reprieve, and amnesty.
CROUCH, supra note 16, at 20.
22. The Pardon Clause, U.S. Const. art. II, § 2, cl. 1, provides as follows: “The President . . .
shall have Power to grant Reprieves and Pardons for Offences against the United States, except in
Cases of Impeachment.” For a discussion of whether Congress also has a clemency power, see CROUCH,

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governor.23 The executive pardon power is virtually unlimited24 and can be
exercised for any reason that the President or governor deems just.25 The
executive can dispense clemency purely as an act of mercy,26 or as a means of
achieving another social goal by reducing the punishment that an offender
otherwise would suffer.27 Some clemency recipients—e.g., Jefferson Davis,
Robert Stroud, known as the “Birdman of Alcatraz,” and Richard Nixon—are
famous or infamous public figures. But they are in the minority. As one author
put it, “[p]residents generally have exercised executive clemency to give average, anonymous Americans another chance.”28
Throughout our history presidents have exercised the pardon power for a host
of reasons: e.g., to remedy a miscarriage of justice; to soften the rigors of an
unduly severe punishment; to quell civil unrest; to grant immunity to a witness
so that he can testify at trial, and so forth.29 Some instances of executive
clemency have been particularly noteworthy. George Washington granted amsupra note 16, at 49–51. Congress always could repeal a criminal law and apply the repeal retroactively. See, e.g., Dorsey v. United States, 132 S. Ct. 2321 (2012); cf. United States v. Chambers, 291
U.S. 217 (1934). That action would be tantamount to an exercise of clemency.
23. A majority of early state governments shared the pardon power between the governor and
legislature. CROUCH, supra note 16, at 14.
24. The Supreme Court has not imposed a limit on the President’s clemency power. See, e.g., Schick
v. Reed, 419 U.S. 256 (1974) (upholding President Eisenhower’s decision to reduce a condemned
prisoner’s death sentence to life imprisonment without parole despite the fact that the latter penalty was
not authorized by Congress). Lower courts and commentators, however, have argued that several
limitations may exist. See Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974); CROUCH, supra note 16, at
35–36. For example, a president may not be able to grant clemency on the condition that a prisoner
waive certain constitutional rights (e.g., requiring him to change religions) or if clemency requires an
expenditure of funds in violation of the Appropriations Clause, U.S. Const. art. I, § 9, cl. 7 (payments
from the treasury must be authorized by law).
25. See, e.g., THE FEDERALIST No. 74, at 446 (Alexander Hamilton) (Clinton Rossiter ed. 2003)
(“Humanity and good policy conspire to dictate that the benign prerogative of pardoning be as little as
possible fettered or embarrassed.”); Joanna M. Huang, Correcting Mandatory Injustice: Judicial
Recommendation of Executive Clemency, 60 DUKE L.J. 131, 133 (2010) (“Executive clemency[’s] . . .
flexible and broad nature allows the president and state governors to pardon or commute sentences at
will . . . .”).
26. See, e.g., Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280–81 (1998) (plurality opinion)
(“the heart of executive clemency is . . . a matter of grace”); United States v. Wilson, 32 U.S. 150, 160
(1833) (“A pardon is an act of grace, proceeding from the power entrusted with the execution of the
laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a
crime he has committed.”).
27. See, e.g., Biddle v. Perovich, 274 U.S. 480, 486 (1926) (“A pardon in our days is not a private
act of grace from an individual happening to possess power. It is a part of the constitutional scheme.”).
28. CROUCH, supra note 16, at 127.
29. See, e.g., CROUCH, supra note 16; Jonathan T. Menitove, Note, The Problematic Presidential
Pardon: A Proposal for Reforming Federal Clemency, 3 HARV. L. & POL’Y REV. 447, 452 (2009);
Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful
Claim to Clemency, 24 N.Y.U. REV. L. & SOC. CHANGE 43, 50 (1998) (“[A]n executive pardon would
allow the President to heal the country in times of civil unrest, thereby protecting national security.”);
Mark Strasser, The Limits of the Clemency Power on Pardons, Retributivists, and the United States
Constitution, 41 BRANDEIS L.J. 85, 89 (2002) (“[P]ardons may be issued when justice would otherwise
not be served either because the sentence was too harsh or because the person was wrongly convicted.”).

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nesty to participants in the Whiskey Rebellion. Abraham Lincoln granted
amnesty to those who rebelled against the union. Jimmy Carter granted amnesty
to Vietnam War draft evaders. And Gerald Ford pardoned Richard Nixon for his
role in the Watergate cover-up.30 Recently, however, the pardon power has
fallen into desuetude. Presidents and governors have used it less frequently,
albeit sometimes for good reasons.31 But it also has been used unwisely, which
has tarnished its value.32
One explanation for the drop in the number of pardons is its visibility. Only
the President or a governor can grant clemency, which focuses its exercise on a
politically accountable official. “Parole took some political heat off the governor” by reducing demand for clemency and by letting political appointees make
parole release decisions.33 For that reason and others, parole became the
predominant early release procedure in the twentieth century.
B. Parole

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Parole is a mechanism for releasing a prisoner before the completion of his
sentence, but with a proviso: He can remain free only if he keeps his nose
clean.34 Parole was born late in the nineteenth century into the then-nascent
movement to use the correctional process as a means of rehabilitating offenders
for their hoped-for eventual return to society as law-abiding citizens.35 The
underlying theory was that the correctional process should be devoted to
rehabilitating offenders, with each actor playing a different, assigned role.36
The process worked as follows: Trial judges came first. In a manner resem30. Rosenzweig, supra note 20, at 598.
31. See, e.g., CROUCH, supra note 16, at 60–64; Margaret C. Love, The Twilight of the Pardon
Power, 100 J. CRIM. L. & CRIMINOLOGY 1169, 1169 (2010); Rosenzweig, supra note 20.
32. See infra note 204.
33. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 162 (1993); PETERSILIA,
supra note 6, at 61.
34. See Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (“The essence of parole is release from
prison, before the completion of sentence, on the condition that the prisoner abide by certain rules
during the balance of the sentence.”); Zerbst v. Kidwell, 304 U.S. 359, 363 (1938) (Parole is “a means
of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity
by clemency—under guidance and control of the [Parole] Board.”) (footnote omitted); U.S DEP’T OF
JUSTICE, 4 ATTORNEY GENERAL’S SURVEY OF RELEASE PROCEDURES 4 (1939) (defining parole as “the release
of an offender from a penal or correctional institution, after he has served a portion of his sentence,
under the continued custody of the State and under conditions that permit his reincarceration in the
event of misbehavior”).
35. For a history of the theory and practice of parole, see FRIEDMAN, supra note 33, at 161–62,
406–09; GOLDFARB & SINGER, supra note 6, at 257–58. See also HOFFMAN, supra note 6, at 1, 5–34;
DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM 79–108 (rev. ed. 1990); Edgardo Rotman, The
Failure of Reform: United States, 1865–1965, in THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF
PUNISHMENT IN WESTERN SOCIETY 151, 166–67 (Norval Morris & David J. Rothman eds., 1998).
36. See Williams v. New York, 337 U.S. 241, 248 (1949) (“Retribution is no longer the dominant
objective of the criminal law. Reformation and rehabilitation of offenders have become important goals
of criminal jurisprudence.”) (footnote omitted); DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND
SOCIAL ORDER IN CONTEMPORARY SOCIETY 34–40 (2001); MARIE GOTTSCHALK, THE PRISON AND THE
GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA 37–39 (2006).

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bling a medical model,37 judges diagnosed the offender’s particular condition38
based on all the available evidence,39 and turned him over to the custody of the
correctional system, where the actual work of rehabilitation would take place.
To give correctional officials ample time for their treatment to work, legislatures
would pass laws authorizing a broad sentencing range, a span of years that gave
correctional specialists a long period of time—in theory, for the prisoner’s
remaining years—to reform his ways.40 Judges committed an offender to the
custody of the warden under an indeterminate sentence that gave correctional
officials ample opportunity to attempt rehabilitation. Ultimately, a parole board
would decide if and when the prisoner had been reformed and could be
released.41 Once released, a parolee would be subject to numerous restrictions
on what he could do, as well as subject to the supervision of a parole officer.42
The parole officer would meet with and monitor the parolee’s conduct, and
could initiate the process of returning the offender to prison for violating the
conditions of his parole.43
The rehabilitative ideal was the penal philosophy underlying the correctional
process for most of the twentieth century, and indeterminate sentences and
parole were the pillars of the system.44 Every state and the federal government
37. See Sheldon Glueck, Principles of a Rational Penal Code, 41 HARV. L. REV. 453, 455 (1928);
Rotman, supra note 35, at 159 (“Just as no legislature would tell a doctor when to discharge a patient
from a hospital as cured, so no legislature should tell a warden or any other prison official when to
discharge an inmate as cured.”).
38. See, e.g., Koon v. United States, 518 U.S. 81, 113 (1996) (“It has been uniform and constant in
the federal judicial tradition for the sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.”); Grayson v. United States, 438 U.S. 41, 47 (1978).
39. The judge needed a complete medical history, so a probation officer would prepare a report
detailing the offender’s life history. Any and all evidence was deemed relevant and necessary. See, e.g.,
18 U.S.C. § 3577 (2006) (“No limitation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence.”); Williams v. New York,
337 U.S. 241, 247 (1949).
40. See, e.g., Charlton T. Lewis, The Indeterminate Sentence, 9 YALE L.J. 17, 21 (1899). For
example, a statute might authorize a sentence of “No more than five years’ imprisonment” or “No less
than 3, but no more than 10 years’ imprisonment.”
41. Parole officials enjoyed almost absolute discretion over release decisions. See, e.g., Mistretta v.
United States, 488 U.S. 361, 363–64 (1989). The theory was that the ability to earn an early release via
parole would encourage inmates to reform themselves, and the absolute discretion granted to parole
boards was necessary to make the scientific decision when a prisoner had been rehabilitated and to
maintain institutional control and discipline. PETERSILIA, supra note 6, at 60.
42. Parole statutes or boards historically imposed a variety of conditions on a parolee, such as
regularly seeing his parole officer, maintaining employment, supporting his family and dependants, not
breaking the law, avoiding drugs and alcohol use, and the like. More recent conditions include
participation in drug testing, restitution, and community service. See PETERSILIA, supra note 6, at 79,
82–83.
43. See generally Morrissey v. Brewer, 408 U.S. 471 (1972) (discussing due process restrictions on
parole revocation procedures).
44. See, e.g., GARLAND, supra note 36, at 55–60, 92; GOTTSCHALK, supra note 36, at 37–38; DAVID
ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA
54–58 (1980); Rotman, supra note 35, at 151, 158–59, 170–71.

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had a parole process in place by 1942.45 As always, every player in the system
griped about how it worked in his or her own bailiwick.46 On balance, however,
everyone valued the availability of parole and took advantage of that opportunity quite often.47 Over time, parole became not just “an ad hoc exercise of
clemency,” but was “an integral part of the penological system.”48
All that changed in the last quarter of the twentieth century.49 Against the
background of social foment generated by the Civil Rights Movement, the
Vietnam War, Watergate, and a severe recession, an escalating crime rate50
alarmed the public, which demanded that stiffer measures be taken.51 At the

45. See PETERSILIA, supra note 6, at 2–3, 131. Congress passed the first federal parole law in 1910.
See Federal Parole Act of 1910, ch. 387, 36 Stat. 819, 819–21; HOFFMAN, supra note 6, at 1, 5–34. In the
federal system, parole was available to any prisoner serving a term of one year or longer after he had
completed one-third of his sentence. HOFFMAN, supra note 6, at 6; L.C. White, The Federal Parole Law,
12 A.B.A. J. 51, 51 (1926) (White was the Superintendent of Federal Prisons). The Federal Parole Act
1910 authorized separate parole boards at each prison. See Federal Parole Act of 1910, ch. 387, § 2, 36
Stat. 819, 819. In 1948, Congress consolidated the separate parole boards into one board and later
revised that board when creating the U.S. Parole Commission. See Act of June 25, 1948, ch. 645
§ 4201, 62 Stat. 683, 854; Parole Commission and Reorganization Act, Pub. L. No. 94-233, 90 Stat. 219
(1976) (codified at 18 U.S.C. § 4201–18) (repealed 1984); S. REP. NO. 94-648, at 23-26 (1976) (Conf.
Rep.); U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 391 (1980).
46. Judges believed that parole boards interfered with their sentencing prerogative, and the police
complained that parole boards did not notify them when prisoners were returned to the community. Yet,
wardens supported parole because it encouraged good behavior, district attorneys found that parole
made plea bargaining easier, legislators endorsed parole because early release of prisoners avoided the
need to raise taxes to underwrite additional prison space. See Rotman, supra note 35, at 163.
47. In 1977, 72% of all prisoners released from custody were paroled, the largest number in the
twentieth century. Throughout the 1960s, that number was even higher in some states, exceeding 95%
in Washington, New Hampshire, and California. PETERSILIA, supra note 6, at 58–59, 62.
48. Morrissey v. Brewer, 408 U.S. 471, 477 (1972).
49. See, e.g., Francis T. Cullen, Rehabilitation and Treatment Programs, in CRIME: PUBLIC POLICIES
FOR CRIME CONTROL 253, 253–54 (James Q. Wilson & Joan Petersilia eds., 2002); FRANCIS T. CULLEN &
CHERYL LERO JONSON, CORRECTIONAL THEORY: CONTEXT AND CONSEQUENCES 33–34 (2012); FRIEDMAN,
supra note 33, at 305–09; GARLAND, supra note 36, at 55–60; GOTTSCHALK, supra note 36, at 37–39;
JEREMY TRAVIS, BUT THEY ALL COME BACK 17–20 (2005).
50. As the Justice Department recently summarized:
Between 1960 and the early 1990s, violent crime in the United States increased dramatically.
According to the Federal Bureau of Investigation’s Uniform Crime Reports, the number of
violent crimes in the United States rose from 288,460 in 1960 to 1,932,274 in 1992. The
number of murders rose from 9,110 in 1960 to 23,760 in 1992. The number of rapes rose from
17,190 in 1960 to 109,062 in 1992; robberies from 107,840 in 1960 to 672,478 in 1992; and
aggravated assaults from 154,320 in 1960 to 1,126,974 in 1992. According to the Bureau of
Justice Statistics’ National Victimization Survey, 10,015,769 Americans were victims of
violent crime in 1992, up from 7,827,356 in 1973 (the first year of the survey).
Letter from Lanny Breuer, Ass’t Att. Gen., & Jonathan Wroblewski, Dir., Office of Pol’y and Legis., to
the Hon. Patti B. Saris, Chair, U.S. Sent. Comm’n (July 23, 2012) (footnotes omitted), http://www.
ussc.gov/Meetings_and_Rulemaking/Public_Comment/20120815/DOJ_Annual%20Letter_priorities_
comment.pdf [hereinafter DOJ Letter].
51. See, e.g., Petersilia, supra note 8, at 52. The public also had some powerful allies. See generally,
DAVID FOGEL, WE ARE THE LIVING PROOF (1975); ANDREW V. HIRSCH, DOING JUSTICE; THE CHOICE OF
PUNISHMENTS (1976); JAMES Q. WILSON, THINKING ABOUT CRIME 178–81 (1985); CULLEN & JONSON, supra
note 49, at 33; PETERSILIA, supra note 6, at 64–65.

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same time, critics assaulted parole from the left, highlighting numerous perceived flaws in the administration of the parole laws, as well as in the underlying rehabilitative idea.52 Parole got caught in the crossfire.
Politicians responded with more severe sentencing laws.53 By the turn of this
century, only sixteen states had left untouched the parole board’s discretionary
release authority, and another sixteen had abolished parole altogether.54 Twentyseven states and the District of Columbia adopted so-called “truth-in-sentencing
laws,” which require an offender to be imprisoned for at least 85 percent of his
sentence.55 Approximately half of the states and the federal government had
recidivist sentencing laws in one form or another that amped up the punishment,
sometimes to life imprisonment, for repeat offenders.56 Finally, the entire nation
had adopted statutes imposing mandatory minimum sentences for firearms
offenses, drug crimes, or other felonies.57 The transformation from a medically
oriented system to a punitive one was complete.
52. See generally, FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL (1981); MICHEL FOUDISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (1977); TWENTIETH CENTURY FUND TASK FORCE ON
CRIMINAL SENTENCING, FAIR AND CERTAIN PUNISHMENT 3–4 (1976); NORVAL MORRIS, THE FUTURE OF
IMPRISONMENT 24–43 (1974); JESSICA MITFORD, KIND AND USUAL PUNISHMENT: THE PRISONER BUSINESS
(1973); MARVIN FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1972); AM. FRIENDS SERV. COMM.,
STRUGGLE FOR JUSTICE: A REPORT ON CRIME & PUNISHMENT IN AMERICA (1971); DANIEL GLASER, THE
EFFECTIVENESS OF A PRISON AND PAROLE SYSTEM (1969); ROTHMAN, supra note 35, at 159–201. For a
concise statement of those flaws, see infra Part IV.B.
53. See, e.g., TODD R. CLEAR, IMPRISONING COMMUNITIES 50–53 (2007); CULLEN & JONSON, supra note
49, at 33; PETERSILIA, supra note 6, at 68. Congress and the states responded to the demand for tougher
enforcement of the criminal laws in other ways too. See, e.g., Aimee’s Law, 42 U.S.C. § 13713 (2006)
(potentially reducing federal funding for states without “truth in sentencing laws”—i.e., laws requiring
offenders to serve at least 85% of their sentence); Jacob Wetterling Crimes Against Children and
Sexually Violent Offender Registration Act, Pub. L. No. 103-322, 108 Stat. 2038, 2042 (1994) (10%
reduction in federal funds for noncompliant states) (codified at 42 U.S.C. § 14071) (repealed 2006);
Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. No. 104-236, 110 Stat.
3093, 3093-94 (registered sex offenders must notify the FBI when they move to a new state) (codified
at 42 U.S.C. §§ 14072–73) (repealed 2006); Smith v. Doe, 538 U.S. 84, 85 (2003) (rejecting ex post
facto challenge to Alaska sex offender registration law); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1,
1–2 (2003) (rejecting due process challenge to Connecticut sex offender registration statute).
54. See, e.g., PETERSILIA, supra note 6, at 65, 66–67 (status of parole release laws in the states in
2002).
55. See, e.g., id. at 68.
56. See id.; Ewing v. California, 538 U.S. 11 (2003); FRANKLIN E. ZIMRING, GORDON HAWKINS & SAM
KAMIN, PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU’RE OUT IN CALIFORNIA (2001).
57. See, e.g., Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today
(PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (authorizing life imprisonment for repeat
child sex offenders) (codified as amended at 18 U.S.C. § 3559(e) (2006)); Violent Crime Control and
Law Enforcement Act of 1994, 18 U.S.C. § 3559(c) (authorizing life imprisonment for offenders
previously convicted of two or more violent felonies); Alfred Blumstein & Allen J. Beck, Reentry as a
Transient State between Liberty and Recommitment, in PRISONER REENTRY AND CRIME IN AMERICA 50,
53–55 (Jeremy Travis & Christy Visher eds., 2005); PETERSILIA, supra note 6, at 68. Another example is
the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207. Congress fixed mandatory
minimum sentences corresponding to the weight of a “mixture or substance containing a detectable
amount of” various controlled substances, in whatever form or purity they were found. See 21 U.S.C.
§ 841(b)(1)(A)(i)-(viii), (B)(i)-(viii) (2006); H.R. REP. NO. 99-845, Pt. 1, at 11–12, 17 (1986); Chapman
v. United States, 500 U.S. 453, 461 (1991).
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C. Good-Time

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Good-time laws predate parole. Originally known as “commutation laws,”
these laws sought to help the warden maintain prison discipline by offering an
inmate a limited amount of time off his sentence in return for “good behavior.”58 New York adopted the first good-time law in 1817, and 44 other states
followed by the end of the century.59 The federal government enacted its first
good-time law in 1875.60 It offered prisoners 5 days of credit toward release for
good conduct.61
In theory, good-time credit laws gave wardens a tool for encouraging prisoners to avoid unruly behavior by holding out the carrot of credit towards an
earlier release.62 In practice, however, good-times statutes “were applied . . .
perfunctorily, so that earning good time became automatic. Thus discipline was
exercised by withholding good-time credit for gross misconduct, instead of by
using early release as a reward.”63 The carrot thereby became an entitlement in
a prisoner’s eyes, which, when revoked, became an even more punitive stick.
For most of the twentieth century, a prisoner in the federal system was
eligible for a graduated scale of good-time credit per month depending on the
length of his sentence, whether he was employed in a prison industry or camp,
and whether he had performed an “exceptionally meritorious service” or a duty
“of outstanding importance in connection with institutional operations.”64 The
Bureau of Prisons could deny a prisoner good time credit if he committed a
crime or violated a disciplinary rule (although the Attorney General could
restore lost good time).65 Congress revised the good-time system in 1984.
Today, a prisoner earns up to fifty-four days of credit for each year unless the
Bureau of Prisons finds that he has not satisfactorily complied with disciplinary
rules.66 The Bureau of Prisons also may grant a nonviolent offender additional
credit if he completes a substance abuse program.67
II. THE STATE OF CORRECTIONS TODAY
The punitive approach to crime, which began in the 1970s, may have been a
reasonable response to the fact and fear of a rising crime rate, particularly with
respect to violent crimes. The fundamental duty of every state is to provide the
58. GOLDFARB & SINGER, supra note 6, at 262; see, e.g., Barber v. Thomas, 130 S. Ct. 2499, 2500
(2010); McGinnis v. Royster, 410 U.S. 263, 263 (1973).
59. GOLDFARB & SINGER, supra note 6, at 262.
60. Act of March 3, 1875, ch. 145, 18 Stat. 479, 480.
61. Id.; 18 U.S.C. § 4161 (1982) (repealed 1984). Congress later increased the maximum available
good time credit to fifty-four days. See 18 U.S.C. § 3624(b) (2006); infra note 66.
62. KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL
COURTS 17 (1998); see, e.g., ROTHMAN, supra note 35, at 251.
63. GOLDFARB & SINGER, supra note 6, at 262.
64. See 18 U.S.C. §§ 4161–62 (1982) (repealed).
65. See id.; S. REP. NO. 98-225, at 147 (1983).
66. See 18 U.S.C. § 3624(b) (2006); 28 C.F.R. §§ 523.20, 541.13 (2011).
67. See 18 U.S.C. § 3621(e)(2).

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order necessary for civil society to exist. The actual incidence of crime is one,
but not the only, corrosive feature that society must remedy. Society must calm
the fear that crime stirs in people, or else it will eat away at the community. Fear
of crime leads people to barricade themselves in their homes, which not only
cheapens their societal and personal lives, but also abandons public parks and
walkways to the small minority of people who prey on others.68
At the same time, there are numerous rivals for limited public funds. A dollar
spent in the correctional system cannot be spent in the health care system.
Government must decide how to spend public funds for the greatest overall
return. If the marginal dollar of additional correctional expenditures does not
generate an equal return in crime control, perhaps that dollar should go elsewhere. Principles of retribution, deterrence, incapacitation, and education may
be the most influential factors in correctional theory, but fiscal considerations
matter too, especially in the day-to-day management of a prison system. Politics
has been called the science of the possible, and any politician will tell you that
nothing is possible without money. We therefore need to ask what our incarceration dollars have bought us.
A. The Cost of Large-Scale Incarceration

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The punitive approach to sentencing, followed since the 1970s, has led to a
vast expansion in the size and cost of the correctional systems, which some
critics have labelled the “carceral state.”69 For most of the twentieth century the
imprisonment rate was 100 per 100,000 citizens.70 As of 2007, however, the rate
was 724 per 100,000, more than seven times as much.71 Most of that increase
has come in the last 30 years.72 In 1940, the federal system was home to 24,360
prisoners. Forty years later, that number was 24,252. At the end of 2012, it was
218,292.73 In 1990, there were 708,393 state prisoners, while in 2009 that
number was 1,405,622.74 That increase was not uniform across all categories of
crime. From 1980 to 1997, the number of offenders imprisoned for violent
crimes increased 82 percent; the number for non-violent crimes (excluding drug
68. See CLEAR, supra note 53, at 93.
69. GOTTSCHALK, supra note 36, at 201; see BARBARA MIKULSKI, COMMERCE AND JUSTICE, AND SCIENCE,
AND RELATED AGENCIES APPROPRIATIONS BILL, 2011, S. REP. NO. 111-229, at 69 (2010) (“The Federal
prison population has grown explosively over the last 20 years.”); ALAN B. MOLLOHAN, COMMERCE,
JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS BILL, 2010, H.R. REP. NO. 111-149, at 68
(2009).
70. CLEAR, supra note 53, at 5.
71. Id.
72. H.R. REP. NO. 110-919, at 57 (2008) (“The Federal prison population has grown explosively over
the last 20 years. Rising from roughly 25,000 prisoners in 1980, the population is estimated to be
207,000 by the end of fiscal year 2008 and more than 213,000 by the end of fiscal year 2009.”); see
JOAN PETERSILIA, REFORMING PROBATION AND PAROLE: IN THE 21ST CENTURY 3, 13 (2002).
73. Weekly Population Report, FED. BUREAU OF PRISONS (Dec. 28, 2012), available at http://www.
bop.gov/locations/weekly_report.jsp (last visited Dec. 31, 2012).
74. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE U.S 218 (2011), http://www.census.gov/prod/
2011pubs/12statab/law.pdf.

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offenses) went up 207 percent; and the number for drug offenses, 1,040
percent.75 As of 2010, there were more than 2.2 million Americans in federal,
state, and local jails and prisons.76
Some laws have contributed more than others to the population increase.
Consider so-called “three strikes” laws.77 For more than a century, states have
had on the statute books recidivist or habitual criminal punishments—viz., laws
that could impose life imprisonment for a third felony conviction.78 Nonetheless, prosecutors did not regularly use those weapons against repeat offenders,
except perhaps as a Sword of Damocles in plea-bargaining.79 Beginning in the
1990s, however, the public attitude toward habitual criminals grew far more
punitive, populism replaced expertise as the driving force in criminal justice
policymaking, and the public embraced recidivist laws as a means of keeping
serious, violent criminals off the streets.80
Take California as an example. In October 1993, Richard Allen Davis, a
two-time offender released early on parole, assaulted and murdered twelve-yearold Polly Klaus. That crime spurred the state to adopt one of the nation’s most
punitive habitual criminal laws, one that mandated a sentence of twenty-five
years to life imprisonment for every third conviction.81 The result is that
75. Joan Petersilia, From Cell to Society: Who is Returning Home?, in PRISONER REENTRY AND CRIME
AMERICA, supra note 57, at 15, 21. There is widespread agreement that the increased number of drug
prosecutions and the stiff penalties imposed under the controlled substances laws are the cause of most
of the post-1980 increase in imprisonment. See id.; CLEAR, supra note 53, at 36.
76. LAUREN E. GLAZE, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATION IN THE UNITED STATES 7
(2011); Rosenzweig, supra note 20, at 101.
77. See, e.g., ZIMRING, HAWKINS & KAMIN, supra note 56. Federal law imposes mandatory minimum
sentences for various drug possession offenses. More than one quarter of federal court convictions in
Fiscal Year 2010 were for crimes with a mandatory minimum penalty, and thirty-two percent of that
number were for drug offenses. U.S. SENT’G COMM’N, REPORT TO CONGRESS ON MANDATORY MINIMUM
PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM app. tbls. D-3, D-4 (2011). For a discussion of the
effect of those laws on corrections, see id. at xxv–xlix.
78. See, e.g., NORVAL MORRIS, THE HABITUAL CRIMINAL (1951); ZIMRING, HAWKINS & KAMIN, supra
note 056, at ix, 4, 17. The Supreme Court consistently rejected constitutional challenges to such laws
long ago. See, e.g., Graham v. West Virginia, 224 U.S. 616 (1912); McDonald v. Massachusetts, 180
U.S. 311 (1901); Moore v. Missouri, 159 U.S. 673 (1895). The renaissance of recidivist laws in the late
twentieth century led offenders to renew constitutional challenges to those statutes, and, once again,
they uniformly lost. See, e.g., Ewing v. California, 538 U.S. 11 (2003) (rejecting challenge resting on
the Eighth Amendment Cruel and Unusual Punishments Clause).
79. Recidivist laws serve as an effective tool for “persuading” a two-time loser to plead guilty to a
lesser charge, rather than face having the book thrown at him. See, e.g., Bordenkircher v. Hayes, 434
U.S. 357 (1978).
80. ZIMRING, HAWKINS & KAMIN, supra note 56, at 4–6, 12–16. Historically, criminal justice policy
was made in a “top-down” manner because elected officials and the public trusted the judgment of
professionals in the system. When the public lost trust in criminal justice professionals, those professionals lost the support of political and social elites. Populism and policy-by-plebiscite took over. See
GARLAND, supra note 36, at 13–14, 47–51; NICOLA LACEY, THE PRISONER’S DILEMMA: POLITICAL ECONOMY
AND PUNISHMENT IN CONTEMPORARY DEMOCRACIES 3–54 (2008).
81. See, e.g., Ewing v. California, 538 U.S. 11, 15–17 (2003); CAL. PENAL CODE §§ 667, 1170.12
(West 2012). A defendant with one prior “serious” or “violent” felony conviction receives twice the
term of imprisonment otherwise provided for a second felony conviction. §§ 667(e)(1), 1170.12(c)(1).
A defendant with two or more prior “serious” or “violent” felony convictions must receive “an
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California now has a bumper crop of prisoners sentenced under its “three
strikes” law, which has led to extreme prison overcrowding.82 Reviewing the
history and effect of California’s law, some experts have argued that, by and
large, the three-strikes law is inefficient because it confines far too many repeat
offenders than necessary to incapacitate serious offenders and preserve scarce
correctional resources.83
An increase in the size of the prison population has meant a corresponding
increase in expenses.84 The cost of operating the nation’s prisons increased from
$5 billion in 1976 to $9 billion in 1982 and then jumped to $31 billion in
2002.85 That number escalates to almost $50–60 billion by including jail,
probation, and parole expenditures.86 In 1980, the average annual cost for
confining an offender in federal prison was $13,84187 and in a state prison was

indeterminate term of life imprisonment” with at twenty-five-year minimum period of confinement.
§§ 667(e)(2)(A), 1170.12(c)(2)(A).
82. See, e.g., Brown v. Plata, 131 S. Ct. 1910, 1924 (2011) (“The degree of overcrowding in
California’s prisons is exceptional. California’s prisons are designed to house a population just under
80,000, but at the time of the three-judge court’s decision the population was almost double that. The
State’s prisons had operated at around 200% of design capacity at least 11 years.”).
83. See ZIMRING, HAWKINS & KAMIN, supra note 56, at 4.
Norval Morris’s study of offenders sentenced under the English habitual-felon statute showed
that most of these certified habitual felons usually committed crimes of minor social consequences and were distinguished from other criminals principally by their vulnerability to swift
detection. Life terms for many of these petty thieves seemed like a progressive tax on
stupidity.
Id. In November 2012, the California electorate voted to modify the three-strikes law so that life
imprisonment is mandated only if the third crime is “serious or violent.” See Edward Ngai, On the
ballot: Calif. Amends three-strike law, upholds death penalty, THE STANFORD DAILY (Nov. 7, 2012),
http://www.stanforddaily.com/2012/11/07/ca-ballot-propositions-face-mixed-reception/.
84. See ACLU, AT AMERICA’S EXPENSE: THE MASS INCARCERATION OF THE ELDERLY (2012), http://www.
aclu.org/files/assets/elderlyprisonreport_20120613_1.pdf.
According to data from the Bureau of Justice Statistics, state and local criminal justice
spending (including law enforcement, criminal prosecution, courts, and corrections) rose from
approximately $32.6 billion to $186.2 billion between 1982 and 2006. Analysis of state budget
trends by the National Association of State Budget Officers (NASBO) shows overall state
spending on all categories of programs (including corrections, law enforcement and criminal
justice programs) continued to rise until 2009, when the recent recession began to affect
states’ budgets. Similarly, federal justice system expenditures steadily increased from $4.5
billion in 1982 to $41 billion in 2006. The Department of Justice’s outlays rose from
approximately $2.3 billion in 1982 to approximately $30 billion today.
DOJ Letter, supra note 50, at 2 (footnotes omitted).
85. See 42 U.S.C. § 17501(b)(4) (2006); H.R. REP. NO. 110-140, at 2 (2007); PETERSILIA, supra note
6, at 4. The cost of confining elderly prisoners, roughly $69,000 per year, exceeds by a factor of three
the average annual cost for younger inmates, $22,000, yet the risk of recidivism for most elderly
prisoners is quite small. PETERSILIA, supra note 6, at 18, 24.
86. PETERSILIA, supra note 6, at 4
87. In 1980, the federal inmate population was 24,640, and federal prison operating expenditures
were $319,274,000. See U.S. GEN. ACCOUNTING OFFICE, FEDERAL AND STATE PRISONS: INMATE POPULATIONS,
COSTS, AND PROJECTION MODELS 24, 30, 31 (1996) http://www.gao.gov/archive/1997/gg97015.pdf [hereinafter GAO: FEDERAL AND STATE PRISONS].

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between $6,917 and $10,814.88 By 2010, the average annual cost for each
federal prisoner was $28,284, while the cost was even higher for state inmates,
$31,286.89 To confine an elderly prisoner—i.e., one 55 or older—it costs
$66,000 each year, potentially rising to $104,000 for the severely ill.90 The
corrections budget can crowd out the other funds necessary to operate the
criminal justice system.91 It therefore is not surprising that “[c]orrections spending, as a share of state budgets, rose faster than health care, education, and

88. The GAO reported that there were 305,458 state prisoners in 1980. See GAO: FEDERAL AND STATE
PRISONS, supra note 87. With a total operating cost in 1980 of $2,787,369,000 and capital costs of
$515,854,000, see U.S. CENSUS BUREAU, supra note 74, at 30–31, the per prisoner cost would be
$10,814 per year under the GAO’s headcount.
89. Newly Available: Costs of Incarceration and Supervision in FY 2010, U.S. Courts, THIRD BRANCH
NEWS (June 23, 2011), http://www.uscourts.gov/News/NewsView/11-06-23/Newly_Available_Costs_
of_Incarceration_and_Supervision_in_FY_2010.aspx; see CHRISTIAN HENRICHSON & RUTH DELANEY,
THE PRICE OF PRISONS: WHAT INCARCERATION COSTS TAXPAYERS 9–10, 14 n.9 (2012) (citing data from 40
states). That 2012 Vera Institute study found that per inmate costs ranged from $14,603 in Kentucky to
$60,076 in New York. See HENRICHSON & DELANEY, supra, at 9–10.
90. See, e.g., CARRIE ABNER, COUNCIL OF STATE GOV’TS, GRAYING PRISONS: STATES FACE CHALLENGES OF
AN AGING INMATE POPULATION 10 (2006), http://www.csg.org/knowledgecenter/docs/sn0611GrayingPrisons.
pdf; INIMAI CHETIAR, KEEPING LOW-RISK ELDERLY PRISONERS BEHIND BARS IS A BUDGET BUSTER (2012),
available at http://www.americanprogress.org/issues/2012/06/elderly_prisoner.html; Petersilia, supra
note 75, at 18; PETERSILIA, supra note 6, at 24.
91. See, e.g., FRANK R. WOLF, COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS
BILL, 2012, H.R. REP. NO. 112-169, at 58 (2011);
The [Appropriations] Committee believes it is imperative that experts at BOP and outside the
government fully understand the drivers of population, costs and recidivism so that overcrowding, costs and recidivism can be addressed. The Committee encourages BOP to undertake a
comprehensive analysis of its policies and determine the reforms and best practices that will
help reduce spending and recidivism.
Id.;
The [Appropriations] Committee must provide an increase of more than $350,000,000 above
fiscal year 2011 to safely guard the nation’s growing Federal prison inmate and detention
populations. While these activities are not considered mandatory for budget purposes, they are
not truly discretionary in that the Committee has an obligation to adequately fund them
regardless of budgetary constraints. Given the limited flexibility of the Federal prison and
detention budget requests, and unless the inmate populations experience unforeseen decreases,
the day approaches fast when Federal prisons and detention demands swallow the Justice
Department’s budgetary resources . . . . Given these urgent challenges within current budgetary constraints, the Committee was forced to reduce activities for which it has historically
provided increases. The Committee’s recommendation regrettably cuts nearly all other Federal
law enforcement agencies—including the Federal Bureau of Investigation [FBI], Drug Enforcement Administration [DEA], Bureau of Alcohol, Tobacco, Firearms and Explosives [ATF],
U.S. Marshals Service, and U.S. Attorneys—by up to 2 percent from fiscal year 2011 enacted
levels. State and local grant programs are cut by over $482,000,000, or by 17 percent,
compared with fiscal year 2011 levels. Over 20 grant programs are eliminated and the
surviving programs face substantial reductions . . . . [T]he Committee is gravely concerned
that the current upward trend in prison inmate population is unsustainable and, if unchecked,
will eventually engulf the Justice Department’s budgetary resources.
BARBARA MIKULSKI, DEPARTMENT OF COMMERCE AND JUSTICE,
APPROPRIATIONS BILL, 2012, S. REP. NO. 112-78, at 62 (2011).

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natural resources spending from 1986 to 2001.”92
A significant part of that increase is due to inmate medical care,93 which has
become particularly expensive.94 Health care now constitutes approximately 20
percent of the correctional budget in states nationwide, with the percentage in
California being 26 percent.95 Studies conducted from 1997–2001 show that
U.S. spending on health care for prisoners rose 27 percent to approximately
$3.5 billion.96 From 1992 to 2000, the simple daily cost of health care to the
incarcerated rose a steep 31.5 percent.97
More recent data shows that the trend of skyrocketing health care costs has
not abated. For example, Wisconsin conducted a ten-year study from 1999 to

92. KIRCHHOFF, supra note 9, at 9 (footnote omitted); see HENRICHSON & DELANEY, supra note 89, at 2
(“States’ corrections spending—including prisons as well as probation and parole—has nearly quadrupled over the past two decades, making it the fastest growing budget item after Medicaid.”)
(footnote omitted).
93. The legal standard is ordinarily phrased in the negative—that is, the government cannot be
deliberately indifferent to a prisoner’s legitimate medical needs. See, e.g., Brown v. Plata, 131 S. Ct.
1910, 1928 (2011); Farmer v. Brennan, 511 U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97 (1977).
Prisoners cannot demand that they receive the same medical care that wealthy private parties could
afford. See, e.g., United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987) (“Persons forfeit a variety
of freedoms in consequence of proven criminality. And, though it is plain that an inmate deserves
adequate medical care, he cannot insist that his institutional host provide him with the most sophisticated care that money can buy.”). The courts generally have held that the federal prison system can
provide even seriously ill prisoners with the medical care that they need. See United States v. Hilton,
946 F.2d 955 (1st Cir. 1991); United States v. Studley, 907 F.2d 254 (1st Cir. 1990); United States v.
Depew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990); Marjorie Russell, Too Little, Too Late, Too Slow:
Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse than the Disease?, 3 WIDENER J.
PUB. L. 799, 813–14 (1994).
94. See ABNER, supra note 90;
The financial burden for states in providing adequate health care for older prisoners is
staggering. In 1997, the Texas Criminal Justice Policy Council reported that health care for
elderly inmates ran $14.80 per day, nearly three times the health care costs for younger
prisoners. While a younger prisoner costs approximately $22,000 to house annually, states pay
an average of $67,000 per year for older inmates.
Id.
Security problems reinforce and augment those increased medical costs. Weak or elderly
prisoners are more susceptible to victimization by younger inmates. Even if that does not
occur, the fear of assault increases the stress felt by elderly prisoners, which furthers weakens
their medical condition. Id. One way to lessen the risk of harm to elderly prisoners is to house
them in separate facilities, but that has its own costs, both direct (e.g., construction and
maintenance costs) and indirect (e.g., salary and fringe benefit costs for additional prison
guards).
95. See California’s Annual Costs to Incarcerate an Inmate in Prison, CAL. LEG. ANALYST’S OFFICE,
http://www.lao.ca.gov/laoapp/laomenus/sections/crim_justice/6_cj_inmatecost.aspx?catidϭ3, (last visited Jan. 10, 2013); HENRICHSON & DELANEY, supra note 89.
96. NAT’L INST. OF CORR., U.S. DEP’T. OF JUSTICE, CORRECTIONAL HEALTH CARE: ADDRESSING THE NEEDS
OF ELDERLY, CHRONICALLY ILL, AND TERMINALLY ILL INMATES 11 (2004), http://static.nicic.gov/Library/
018735.pdf.
97. Id.

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2009 and found that the state corrections budget leapt a whopping 71 percent.98
From data collected and current statistics, the Wisconsin Department of Corrections predicts a $2.5 billion increase in cost to deal with the looming population
issues.99 A study considering data from 1982 to 2006 shows the same increase
seen in more recent studies.100 The study found a 418 percent increase in the
cost of caring for prisoners 55 or older, with total spending rising 660 percent.101 Those cost increases also are greatest among elderly prisoners. The
average cost of an elderly or ill prisoner is triple the costs of health care for a
younger prisoner.102 In sum, the increase in arrests and long prison terms for
drug traffickers, violent felons, and habitual criminals means that the number of
elderly, infirm, and dying prisoners will increase, and, with it, the cost of their
care.103
B. The Benefits of Large-Scale Incarceration

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Determining the cost of our incapacitation-based policy is relatively easy;
just tally up the bills.104 When it comes to the benefits of this policy, we want to
know whether the increase in the prison population has lead to a drop in crime;
if so, by how much; and, if so, of what types. Measuring those benefits is a
difficult undertaking.
One reason is that multiple factors are involved.105 Legislatures increased

98. Gregory J. O’Meara, Compassion and the Public Interest: Wisconsin’s New Compassionate
Release Legislation, 23 FED. SENT’G REP. 33, 33 (2010). Not only did overall cost increase, but the total
population in Wisconsin prisons rose fourteen percent in the seven years between 2000 and 2007. Id.
99. Id.
100. Brie A. Williams, et al., Balancing Punishment and Compassion for Seriously Ill Prisoners,
155 ANNALS OF INTERNAL MED. 122, 123 (2011).
101. Id.
102. Id.
103. See ABNER, supra note 90, at 9 (“Elderly inmates represent the fastest growing segment of
federal and state prisoners. . . . Experts say the growth of the elder inmate population is expected to
continue.”); id. at 10 (number of federal and state inmates fifty or more years old has increased from
41,486 in 1992 to 113,358 in 2001); id. at 11 (the daily average health care cost for each federal and
state prisoner has increased from $5.04 in 1991 to $7.39 in 2000); INST. OF CORRECTIONS, supra note 96,
at 11 (charting escalating average health care costs per inmate from 1991–2000).
104. Actually, it’s not that easy. Some costs are immediate (e.g., food for a prisoner); some are
intermediate-range (e.g., a parolee’s inability to find a job); some are long-term (e.g., the cost of
re-imprisoning a parolee who returns to drug dealing because he cannot find legitimate work); and
others are very long term (e.g., the cost of imprisoning the parolee’s son, who turned to crime due to his
father’s absence). Those are just the vertical costs—viz., the costs to the state from dealing with one
person. The next step is to multiply those costs by the total number of prisoners. The final step is to
measure the horizontal costs—viz., the costs that imprisoning one person inflicts on third parties, such
as the cheapening of the quality of life in a neighborhood. The calculations involved are far from easy
because of the line-drawing problem and double-counting risks involved (viz., attributing harms to
multiple offenders). Somewhere in that calculus belongs the cost of human suffering by prisoners, their
families, and anyone else who cares about them. It is difficult to put a dollar value on human misery.
105. See, e.g., Alfred Blumstein & Joel Wallman, The Recent Rise and Fall of American Violence, in
THE CRIME DROP IN AMERICA 1062 (Alfred Blumstein & Joel Wallman, eds., rev. ed. 2006); FRANKLIN E.
ZIMRING, THE GREAT AMERICAN CRIME DECLINE 197–99 (2008).

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sentences, but they also increased the size of police departments,106 which may
have contributed to (or overshadowed) the effect of sentence enhancements on
the crime rate.107 Changes in the strategies the police use to fight crime also are
pertinent to this inquiry.108 And to some extent, the inquiry is problematic
because it requires identifying, counting, and classifying non-events: crimes that
did not occur to persons not victimized.
Nonetheless, penologists seem to agree that our incapacitation policy has
reduced the crime rate109; they just disagree over how much.110 But they also
106. Following the enactment of the Violent Crime Control and Law Enforcement Act of 1994, Pub.
L. No. 103-322, 108 Stat. 1796, the federal government created the Office of Community Oriented
Policing Services, colloquially known as the COPS Program, which was designed to help underwrite
the cost of adding 100,000 new police officers nationwide. State and local police departments increased
the number of officers by 50,000–60,000 in the 1990s, roughly a 14% increase. New York City alone
increased the number of police officers by 33–45%. See, e.g., Steven D. Levitt, Understanding Why
Crime Fell in the 1990s: Four Factors That Explain the Decline and Six That Do Not, 18 J. ECON.
PERSPS. 163, 173 (2004); ZIMRING, supra note 5, at 149–52; COPS History (1994–The Present), CMTY.
ORIENTED POLICING SERVS. OFFICE, http://www.cops.usdoj.gov/Default.asp?Itemϭ44 (last visited Jan. 10,
2013).
107. As Steven Levitt has explained:
The increase in police can thus explain somewhere between one-fifth and one-tenth of the
overall decline in crime. Whether this investment in police has been a cost-effective approach
to reducing crime is a different question. As noted above, annual expenditures on police are
approximately $60 billion, so the cost of the 14 percent increase in police (assuming marginal
cost is equal to average cost, which is likely to be a reasonable approximation) is $8.4 billion
a year. The benefits of crime reduction are more difficult to quantify. The most commonly
used estimates of the cost of crime to victims . . . place[] the costs of crime at roughly $500
billion annually in the early 1990s. Given the sharp declines in crime, today’s estimates would
likely be substantially lower—perhaps $400 billion in current dollars. If the increase in police
reduced crime by 5–6 percent, then the corresponding benefit of crime reduction is $20–25
billion, well above the estimated cost. Thus, at least to a crude, first approximation, the
investment in police appears to have been attractive from a cost-benefit perspective.
Levitt, supra note 6, at 177; see also id. at 173, 176–77.
108. For example, in the 1990s, New York City made several important changes to the tactics and
management of its police department. The department adopted the “Broken Windows” or “Order
Maintenance” theory of policing, which uses aggressive street patrol and relies on misdemeanor arrests
to improve the quality of community life and to deter more serious crimes. The department also used
the data acquired from those arrests to create and manage police assignment. See, e.g., WILLIAM
BRATTON, THE TURNAROUND (1998); FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE (2011); ZIMRING,
supra note 5, at 149–52. Other strategies were so-called “Community Policing,” which sought to
decentralize decision-making and form partnerships with communities and their leaders, “Focused
Policing,” which concentrated police efforts on repeat offenders or particular crimes, and “Problem
Oriented Policing,” which sought to identify and respond to problems that lead to specific offenses. See
John E. Eck & Edward R. Maguire, Have Changes in Policing Reduced Violent Crime? An Assessment
of the Evidence, in THE CRIME DROP IN AMERICA, supra note 105, at 217.
109. Compare Petersilia, supra note 8, at 52 (imprisonment accounted for about 25% of the 1990s
crime reduction), with ZIMRING, supra note 5, at 55 (“A best guess of the impact of post-1990 changes
in incarceration rates on post-1990 declines in the crime rate would range from 10% of the decline at
the low end to 27% of the decline at the high end . . . .”), and William Spelman, The Limited
Importance of Prison Expansion, in THE CRIME DROP IN AMERICA, supra note 105, at 123 (27%); Levitt,
supra note 6, at 173, 177; CULLEN & JONSON, supra note 49, at 121–26 (discussing studies); John J.
Dilulio, Jr., Arresting Idea, 74 POL’Y REV. 12 (1995); John J. Donohue, III & Peter Siegelman,
Allocating Resources Among Prisons and Social Programs in the Battle Against Crime, 27 J. LEGAL.

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point out that someday we will reach (some say, already have reached) the point
of diminishing returns. Once there, greater use of imprisonment squanders
premium tax dollars.111 Even worse, it can increase the crime rate.112 The
incarceration of large numbers of (principally) male adults decimates a neighborhood. It disrupts family and social life, as fathers carom back and forth between
prison and the community, or leave it for extended periods, and it weakens the
informal social controls that are a community’s first line of defense against
illegal or unruly behavior.113 Knowing when we have approached or reached
that tipping point, needless to say, is a challenge. But no one seems to doubt that
it exists.

STUD. 1 (1998); MARK A.R. KLEIMAN, WHEN BRUTE FORCE FAILS 14–15, 80–85 (2009). Levitt is more
confident of the relationship:
[T]he increase in incarceration over the 1990s can account for a reduction in crime of
approximately 12 percent for [homicide and violent crime] and 8 percent for property crime,
or about one-third of the observed decline in crime. Annual expenditures on incarceration total
roughly $50 billion annually. Combining this spending figure with the cost of crime to victims
and elasticities noted above, expenditures on prisons appear to have benefits that outweigh the
direct costs of housing prisoners, subject to three important caveats. First, a dollar spent on
prisons yields an estimated crime reduction that is 20 percent less than a dollar spent on
police, suggesting that on the margin, substitution toward increased police might be the
efficient policy. Second, it seems quite plausible that substantial indirect costs are associated
with the current scale of imprisonment, such as the adverse societal implications of imprisoning such a large fraction of young African American males. Finally, given the wide divergence
in the frequency and severity of offending across criminals, sharply declining marginal
benefits of incarceration are a possibility. In other words, the two-millionth criminal imprisoned is likely to impose a much smaller crime burden on society than the first prisoner.
Although the elasticity of crime with respect to imprisonment builds in some declining
marginal returns, the actual drop off may be much greater. We do not have good evidence on
this point. These caveats suggest that further increases in imprisonment may be less attractive
than the naı¨ve cost benefit analysis would suggest.
Levitt, supra note 6, at 178–79.
110. Criminologists have offered several reasons why the effect of incapacitation is not as large as
hoped: (1) offenders are not rational cost-benefit actors and irrationally discount the likelihood and
severity of future punishment; (2) offenders often work in teams, which survive the imprisonment of
any member; (3) new offenders replace imprisoned ones; (4) once released prisoners return to their old
ways in part due to the limited market opportunities open to them; (5) most crimes are committed by
offenders in the teens and early twenties, before the criminal justice system treats them as serious
felons; (6) most prisoners are not caught and incarcerated until they are on the downslope of the
criminal careers; (7) only a small cohort of criminals commit most offenses, so the expansion of the
prison population largely confines the wrong offenders; and (8) labelling a person as an “ex-con” has a
criminogenic effect. See CULLEN & JONSON, supra note 49, at 120–26; CLEAR, supra note 53, at 35–46.
111. See, e.g., CULLEN & JONSON, supra note, 49, at 125–26; KLEIMAN, supra note 9, at 15; ZIMRING,
supra note 105, at 51-52; FRANKLIN E. ZIMRING & GORDON HAWKINS, INCAPACITATION 51 (1995).
112. See, e.g., CLEAR, supra note 53, at 125–26.
113. Id.; Tierney, supra note 15 (“Some social scientists argue that the incarceration rate is now so
high that the net effect is ‘crimogenic’: creating more crime over the long term by harming the social
fabric in communities and permanently damaging the economic prospects of prisoners as well as their
families.”); see also infra text accompanying notes 134–40.

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C. The Intended and Unintended Consequences of the Punitive
Approach to Sentencing

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There always are unintended consequences of legal and public policy decisions. Sometimes those consequences result from “known unknowns,” other
times from “unknown unknowns.”114 Abolition of parole may provide an
example of each one.
In the former category was the knowledge that the prison population would
increase, even though the amount of that increase may have been uncertain.
Also likely in that category was the knowledge that many of the prisoners
confined under the new, more punitive philosophy may have aged out of their
“crime prone” years, because age and recidivism are inversely related.115 But
parole abolition also may have generated “unknown unknowns.” The most
ironic example is the fact that fewer ex-prisoners are now subject to post-release
supervision than when parole was in effect. In 1977, 88 percent of prisoners
released from incarceration were granted discretionary parole, and only 4
percent of prisoners were released because they had “maxed out”—that is, had
completed their sentence. By 1999, however, only 24 percent of released
inmates were granted discretionary parole, 41 percent were released due to
mandatory parole systems, and the number of inmates released because they
had maxed out increased to 18 percent.116 The result is that inmates granted
discretionary release on parole today are those offenders least in need of
supervision, whereas prisoners released because they no longer can be confined
are those in greatest need of supervision. “In the long run no one is more
dangerous than a criminal who has no incentive to straighten himself out while
in prison and who returns to society without a restructured and supervised
release plan.”117 From a public safety perspective, Joan Petersilia has argued
that outcome is perverse. In her words, “[a]bolishing parole was a politically
expedient way to appease the public which wrongly equated parole with letting
inmates out early . . . . No-parole systems sound tough but remove a critical
gatekeeping role, which can protect victims and communities.”118 Accordingly,
“[a]s ironic as it may seem, it is in the interest of public safety that discretionary
parole systems should be reinstituted.”119
There is no national consensus yet about that conclusion. Academics, penologists, and prison reformers argue that our turn in the 1980s and 1990s toward
overly punitive responses to crime could well come back to haunt us. They
maintain that we cannot incarcerate ourselves out of crime (which was declining
in any event) at a cost in prisoner construction and maintenance, as well as lost
114. See Donald Rumsfeld, U.S. Sec’y of Defense, White House Press Conference, (Feb. 12, 2002),
available at http://www.youtube.com/watch?vϭGiPe1OiKQuk&featureϭrelated.
115. Petersilia, supra note 75, at 18.
116. Id. at 6, 13.
117. Id. at 18.
118. Id. at 17–18.
119. See id. at 6.

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human capital and accumulated human misery that we are or should be willing
to pay.120 A summary of their arguments follows.
1. The Criticisms of Reliance on Incapacitation

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Many correctional facilities offer different types of programs that could
benefit a released prisoner.121 Funding for those programs often is hard to come
by,122 however, and there ordinarily are long waiting lists for them.123 A large
number of prisoners (albeit, some by their own choice) never participate in any
of those programs. Today, on their way out of prison, inmates receive $25–200
in cash, a bus ticket back to their neighborhood, and (maybe) an additional
small sum in the form of a housing voucher.124 When they return to the
community, they will find legal and practical barriers to reintegration that would
challenge someone who is part Horatio Alger and part U.S. Marine.125
A felony conviction can serve as a basis for a divorce and loss of parental
rights, so prisoners may have no family who wants them back.126 Public
housing projects may be closed to them by virtue of their conviction.127 A large
number of prisoners lack a high school diploma or a GED.128 Education costs
money, and Congress has taken away the few scholarship funds previously
available, making the possibility of avoiding reoffending through schooling a
dead end.129 Every employment application asks if they have been convicted of
a crime, and employers won’t hire ex-cons because they are seen as untrust-

120. Jeremy Travis maintains that we also do not have a penological theory to substitute for
rehabilitation. See TRAVIS, supra note 49, at xx. The academy may not yet have a consensus about what
is the best theory, but the available objective evidence establishes that we have been relying on a
incapacitation approach to punishment for the last thirty years.
121. One author notes that 97% of state and federal correctional facilities have inmate-counselling
programs, 90% have drug and alcohol counselling, 80% have secondary education programs, and 54%
have vocational training programs. Petersilia, supra note 75, at 38–41.
122. CLEAR, supra note 53, at 53 (“[E]liminating parole changed the incentive structure for providing rehabilitation programs and eventually became a basis for closing them down . . . .”); PETERSILIA,
supra note 6, at 93 (“[H]istory shows that we have never invested much in prison rehabilitation.”).
123. Petersilia, supra note 75, at 41.
124. See Christine M. Hummert, Middle of the Road, 32 J. LEGAL MED. 295, 295 (2011); PETERSILIA,
supra note 6, at 192–93.
125. See PETERSILIA, supra note 6, at 105–37 (discussing the legal and practical barriers faced by
released offenders); CLEAR, supra note 53, at 58–59.
126. See PETERSILIA, supra note 6, at 126–27.
127. See Anti-Drug Abuse Act of 1988, § 5122, 102 Stat. 4301 (codified at 42 U.S.C. § 1437d(l)(6))
(2006) (“Each public housing agency shall utilize leases which . . . provide that any criminal activity
that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any
drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any
member of the tenant’s household, or any guest or other person under the tenant’s control, shall be
cause for termination of tenancy . . . .”); U.S. Dep’t of Housing and Urban Dev. v. Rucker, 535 U.S.
125, 125 (2002).
128. Petersilia, supra note 75, at 24.
129. PETERSILIA, supra note 6, at 33–34. One-third of state prisoners and 26% of federal prisoners
were unemployed in the month before they committed the crime that lead to their incarceration.
Petersilia, supra note 75, at 26.

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worthy.130 The parolee who tries to lie his way out of that question will find that
employers often can check an applicant’s criminal history on the Internet and
that a parole officer can “violate” him for fibbing on the form.131 And many
sources of welfare have been placed out of bounds, on the theory that lawabiding citizens should not be made to pay for the upkeep of outlaws.132 Left to
live on the streets, in a shelter,133 or on the couch of whatever former friend or
associate will put up with him, forced to choose between begging for handouts
and returning to crime, and having to decide whether to accept being thrown
away by society or taking out his anger on the very system that he sees as
oppressing him, a parolee may conclude (or rationalize) that he has no second
chance, no alternative, and so try to get by with the new “skills” that he learned
and associates that he made in Fagin’s School for Pickpockets.134
Only a fool would believe that there would be no adverse consequences from
piling on penalty after penalty atop the incarceration already punishing an
offender. The unavoidable result is “death by a thousand little cuts.”135 Even if
incapacitation of offenders reduces the crime rate for most types of offenses,136
and there is a dispute over the extent to which it does,137 the long term effect of
large-scale incarceration and a confinement-parole-confinement cycle can be
quite harmful. Actions have consequences, intended and unintended, on identified and unidentified targets, such as the children of those we imprison. It is
unlikely that advocates for increasingly punitive criminal sanctions anticipated
the potentially crippling intergenerational effect that such penalties could have

130. See Harry J. Holzer, Stephen Raphael & Michael A. Stoll, Will Employers Hire Former
Offenders?: Employer Preferences, Background Checks, and their Determinants, in IMPRISONING AMERICA: THE SOCIAL EFFECTS OF MASS INCARCERATION 207, 228–29, 236 (Mary Patillo, David Weiman &
Bruce Western eds., 2004); PETERSILIA, supra note 6, at 112–20, 127–29. There are some programs that
seek to place ex-offenders in jobs that give them a chance to start over. The Texas RIO (Reintegration
of Offenders) Program, the New York City Center for Employment Opportunities, the Chicago Safer
Foundation, and the Seattle Pioneer Human Services project are some of those programs. But there are
not many programs, and the ones that exist lack capacity for everyone who needs assistance. Id. at
196–97.
131. See CLEAR, supra note 53, at 53; PETERSILIA, supra note 6, at 106–12.
132. See PETERSILIA, supra note 6, at 124–26.
133. See CLEAR, supra note 53, at 73.
134. See CHARLES DICKENS, OLIVER TWIST (1838). “[P]rison is, in the words of a British Home
Secretary, ‘an expensive way of making bad people worse.’” Shadd Maruna & Hans Toch, The Impact
of Imprisonment on the Desistence Process, in PRISONER REENTRY AND CRIME IN AMERICA, supra note 57,
at 139, 150; see also id. at 152–56 (discussing the theories that prisons serve as “schools of crime” and
are criminogenic); CLEAR, supra note 53, at 47; Joan Petersilia, Community Corrections, in CRIME:
PUBLIC POLICIES FOR CRIME CONTROL, supra note 49, at 483, 495 (“[B]ecause prisons are violent and
dangerous places, new inmates seek protection and connections. Many find both in gangs. Inevitably,
gang loyalties are exported to the neighborhoods when inmates are released.”); Petersilia, supra note
75, at 42. Even in the 19th century, prisons were subject to the charge that they were “seminaries for
vice.” ROTHMAN, supra note 35, at 251.
135. CLEAR, supra note 53, at 94.
136. Some have argued that there is an inexhaustible supply of individuals willing to engage in
small-scale drug sales in impoverished communities. See id. at 54–55.
137. See supra notes 107–10 and accompanying text.

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on the children of offenders. Those effects, however, are real and can be
devastating.138 A healthy family is the foundation upon which any ordered
society rests.139 Children forced to grow up without one or both parents, and
sometimes without entire cohorts of positive adult community role models, are
more likely to pursue crime themselves, thereby perpetuating this evil cycle.140
In sum, consider these observations from Jeremy Travis, President of the
John Jay College of Criminal Justice in New York City. They summarize well
the arguments against heavy reliance on incapacitation:
We should try to imagine the impact that our incarceration policies will
have, over the next generation, on the communities in which incarceration
rates are highest—on family life, adolescent development, labor markets,
family stability, intergenerational transfer of wealth, voting patterns, and civic
participation.
We know the answers to some of these questions, and the answers are
deeply disturbing. We know that time in prison reduces one’s lifetime earnings by 10–30% . . . so our rapid expansion of prisons has depressed the
earnings power of whole neighborhoods where most of the men have done
time. We know that prison places substantial financial burdens on extended
families—they must make up for lost income, pay for collect phone calls from
prison, and take long trips to prison to visit their family members . . . . We
know that minority-voting power is diminished, especially in those 10 states
that deny felons the right to vote for life. In some of those states, up to a
quarter of African-American men cannot vote for the rest of their lives . . . .
We know that high rates of incarceration result in “gender imbalance” . . .
such that in high incarceration neighborhoods there are fewer than 62 men for

138. “Children of incarcerated parents are five times more likely to serve time in prison than are
children whose parents are not incarcerated . . . [P]arole [also] certainly impacts the larger community.
As a greater number of parolees cycle in and out of inner-city neighborhoods, the social characteristics
of those neighborhoods—and their ability to exert informal social controls to reduce crime—diminish.”
Petersilia, supra note 134, at 494; CLEAR, supra note 53, at 510; Jeremy Travis & Christy Visher,
Viewing Crime and Public Safety Through the Reentry Lens, in PRISONER REENTRY AND CRIME IN
AMERICA, supra note 57, at 1, 3, 8.
139. As one commentator has explained:
Families are the building blocks of a healthy society, and family functioning is the key
ingredient in child development. Adults in the family socialize their children about the
normative rules and behavioral expectations of society. Family members connect one another—
especially children—to net works of social support that become the foundation for later social
capital as adults. Families are the central mechanism of informal social controls to shape
behavior. And the interpersonal dynamics of families are the source of later psychological and
emotional health (or maladjustment. There is no single institution that carries more importance in the well-being of children than the family, and the prospects for healthy social
relations in adulthood rely heavily on the existence of a vibrant family life.
CLEAR, supra note 53, at 95.
140. Criminologists refer to this phenomenon as the “Defiance Hypothesis.” It states that an increase
in the penalty for crime will cause a corresponding increase in the crime rate if the law is seen as biased
or unfair. Persons subject to the law will defy it, not obey it, regardless of the enhanced punishment. Id.
at 23.

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every 100 women. We don’t know the impact of the “gender imbalance” upon
dating patterns, family formation, and the male identity. We know that when
the rate of incarceration in a community rises above 1.5%, it seems to produce
more, not less crime . . . . We know that very high rates of arrest and incarceration can make going to prison seem normal and even normative, a rite of
passage and a pathway to respect. We know that in high incarceration
neighborhoods . . . every year one in eight men between the ages 18 and 45 is
arrested and sent to prison or jail . . . . Finally, we have every reason to
suspect that our criminal justice policies are undermining respect for the law,
as we witness the growth of a “stop snitching” culture in communities of
color that punishes young people who cooperate with the police.141

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Defenders of our current incapacitative approach, however, also have a
reasonable argument. At the outset, they point out that punishment is necessary
if the law is to have any teeth. The criminal law must punish in order to make
its threats credible.142 Rehabilitation is a longstanding rationale for punishment,
but it has never been the sole legitimate one.143 Retribution, deterrence, education are bona fide justifications,144 and so, too, is incapacitation.145 In fact,
incapacitation is superior to rehabilitation as a rationale since it does not require
unattainable prescience about what an offender will do after release.
It also is a mistake to say that we never gave rehabilitation a fair shot at
success. We tried it for seventy years, and it failed. We need to learn from our
mistakes.146 Indeed, it is the very definition of insanity to continue doing what
141. Jeremy Travis, Race, Crime and Justice: A Fresh Look at Old Questions, Orison S. Marden
Lecture delivered to the New York Bar Association (March 19, 2008), http://www.jjay.cuny.edu/extra/
speeches/racecrime_justice.pdf.
142. As Oliver Wendell Holmes once wrote: “If I were having a philosophical talk with a man I was
going to have hanged . . . I should say, I don’t doubt that your act was inevitable for you but to make it
more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as
a soldier dying for your country if you like. But the law must keep its promises.” Matthew Haist,
Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting
Retributivism”?, 99 J. CRIM. L. & CRIMINOLOGY 789, 797 (2009) (quoting Letter from Oliver Wendell
Holmes, Jr., to Harold J. Laski (Dec. 17, 1925), in 1 HOLMES-LASKI LETTERS: THE CORRESPONDENCE OF
MR. JUSTICE HOLMES AND HAROLD J. LASKI 1916–1925, at 806 (Mark D. Howe ed., 1953)).
143. See, e.g., Powell v. Texas, 392 U.S. 514, 530 (1968) (plurality opinion) (“[The] Court has never
held that anything in the Constitution requires that penal sanctions be designed solely to achieve
therapeutic or rehabilitative effects . . . .”).
144. For discussions of the different justifications for punishment, see Mistretta v. United States, 488
U.S. 361, 363–70 (1989) (canvassing the history of federal sentencing law); H. L. A. HART, PUNISHMENT
AND RESPONSIBILITY 231–35 (1968); WAYNE R. LAFAVE, PRINCIPLES OF CRIMINAL LAW 23–31 (2d ed. 2010);
HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 35–70 (1968).
145. See, e.g., Ewing v. California, 538 U.S. 11, 25 (2003) (plurality opinion) (“[T]he Constitution
does not mandate adoption of any one penological theory. A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Some or all of these justifications
may play a role in a State’s sentencing scheme. Selecting the sentencing rationales is generally a policy
choice to be made by state legislatures, not federal courts.”) (citations and internal quotation marks
omitted).
146. See, e.g., DAVID FARABEE, RETHINKING REHABILITATION (2005).

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hasn’t worked while hoping for a different outcome.
It also is wrong to claim that punitive responses to crime are feckless or do
not serve equally important alternative societal goals. They isolate hooligans,
deter future criminal or unruly behavior, protect innocent victims against future
crimes, enhance neighborhood quality of life, publicly condemn reprehensible
conduct, and mark particularly heinous behavior as out-of-bounds regardless of
the cost. If nothing else, incapacitation prevents a proved offender from victimizing innocent parties for some period, and that reduction in crime benefits those
people who otherwise would have become crime victims and others in the
community who can enjoy an improved quality of life.147
The idea that incarceration harms the innocent families of inmates is nothing
new.148 It is a conceit to believe that only today do we know the misery
involved. Imprisonment always separated offenders from their spouses and
children. That distance always created the stress that can lead to divorce and
broken families. Those outcomes always have been an unfortunate but unavoidable consequence of incarceration as long as jails have been around, and
confinement of convicted offenders has deep roots both in our history149 and in
the ancient world.150 Indeed, the whole point of imprisonment is to make life
uncomfortable in order to deter individuals from winding up there and injuring
themselves and their families in the process.151 In short, the contemporary
finding that “having one’s parent go to prison is not a positive life experience”
for children152 has been a universally understood fact of life as long as there
have been parents, children, and prisons.
Yes, the punishment imposed on offenders endures even after their release.
There is no doubt that “going to prison is not good for long-term employment
prospects.”153 But it is not a new discovery that a person with a felony record,
once colloquially known as an “ex-con,” will have a difficult time finding work
in a variety of professions.154 Nor is that a potential employer’s fault. A firm’s
failure to conduct a background check on a parolee could expose the company
147. See, e.g., CULLEN & JONSON, supra note 49, at 1, 125–26; KIRCHHOFF, supra note 9, at 11
(“[E]arly parole policies have backfired in states like Connecticut and Washington after recently
released prisoners committed violent crimes when back on the streets.”).
148. Cf. CLEAR, supra note 53, at 97 (“[T]he negative psychological, behavioral, and circumstantial
impact on children from the removal of a parent for incarceration is similar in form, though not always
in degree, to that produced by removal owing to divorce or death.”).
149. One mechanism used by the British Crown to provide inhabitants for the colonies in America
was to offer inmates the opportunity to exchange confinement for a fixed period of indentured servitude
in America. GOLDFARB & SINGER, supra note 6, at 257–58.
150. See Edward M. Peters, Prison Before the Prison: The Ancient and Medieval Worlds, in THE
OXFORD HISTORY OF THE PRISON, supra note 35, at 3 (advancing that the Greeks and Romans used
imprisonment).
151. “If the prison does not underbid the slum in human misery, the slum will empty and the prison
will fill.” GEORGE BERNARD SHAW, THE CRIME OF IMPRISONMENT 286 (1946).
152. CLEAR, supra note 53, at 100.
153. Id.
154. See Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) (presidential pardon granted to allow an
attorney to resume the practice of law by lifting the disability of having fought for the Confederacy).

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to tort liability if he assaults someone while at work.155 And do we really expect
that schools and day care centers must hire convicted child molesters, or believe
that financial institutions act immorally by rejecting applications from embezzlers?
Excluding former prisoners from public housing projects is a harsh rule for
them. But it may be the only way to rid such projects of the violence and fear
that comes with criminals living in close quarters with innocent families. And it
may be necessary to avoid the risk that former inmates could become role
models for adolescents in families trying to escape from their predicament.156
As for drug offenses: a major cause of the increase in imprisonment has come
in the area of drug convictions.157 But it is a mistake to infer from that fact the
conclusion that society has made a mistake in pursuing and imprisoning such
offenders. Plea bargaining is a ubiquitous part of our criminal justice system
today158—it would be no exaggeration to say that it is the criminal justice
system today159—and the offense to which a defendant pleads guilty often is not
the crime that he committed. In the case of guilty pleas in drug cases the
differences between the offense charged and the offense of conviction could be
quite important. A glance at contemporary newspaper headlines shows that

155. Employers who fail to perform criminal background checks of job applicants can be sued, and
some have been found liable, for negligence. See, e.g., Harry J. Holzer, Stephen Raphael & Michael A.
Stoll, Will Employers Hire Former Offenders?: Employer Preferences, Background Checks, and Their
Determinants, in IMPRISONING AMERICA, supra note 130, at 207, 228–29. Interestingly, the ability of
companies to conduct criminal background checks for job applicants has an adverse effect on the class
of minority applicants with felony records, because employers generally will not hire felons, but has a
positive effect on minority applicants without felony records. A company’s failure to conduct such an
inquiry ironically could reduce the likelihood that a racial minority will be hired. See, e.g., id; Hans A.
von Spakowsky, The Dangerous Impact of Barring Criminal Background Checks: Congress Needs to
Overrule the EEOC’s New Employment ‘Guidelines,’ THE HERITAGE FOUND. 1 (May 31, 2012), https://
vo.heritage.org/2012/pdf/,DanaInfoϭthf_media.s3.amazonaws.comϩlm81.pdf.
156. Consider this story:
In the face of community disruptions, some families isolate themselves from neighbours. In a
series of interviews in the South Bronx, Andres Rengifo has observed that many residents
seek to withdraw from their impoverished neighborhoods. One housing project resident, a
single mother with four children (one of whom was attending Yale University and two of
whom were in the prestigious Bronx High School of Science public school) said that although
she had lived in the projects for seven years, “this place is a dump. I don’t talk to anyone. I
don’t know anyone. That’s how we made it here.”
CLEAR, supra note 53, at 103 (internal citation omitted).
157. See, e.g., supra note 75 and accompanying text; CLEAR, supra note 53, at 54–55; KIRCHHOFF,
supra note 9, at 15; BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 45–48 (2006).
158. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (“Ninety-seven percent of federal convictions
and ninety-four percent of state convictions are the result of guilty pleas.”).
159. See id. (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE
L.J. 1909, 1912 (1992) (“To a large extent . . . horse trading [between prosecutor and defense counsel]
determines who goes to jail and for how long. That is what plea-bargaining is. It is not some adjunct to
the criminal justice system; it is the criminal justice system.”)); WILLIAM J. STUNTZ, THE COLLAPSE OF
AMERICAN CRIMINAL JUSTICE (2011).

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many drug dealers are extremely violent160; they terrorize local communities161;
and innocent third parties can suffer as a result.162 If it is easier to prosecute
drug offenders for possession crimes, or to threaten to use murder or racketeering charges in order to persuade an offender to plead guilty to a simple
possession crime, prosecutors will choose that option if the sentence is satisfactory. We therefore should not be surprised to see a large number of drug
offenders in prison on guilty pleas to possession counts. On the contrary, we
should expect to see that result often.
Defenders of the status quo also will point to the need for severe punishments
in order to protect innocent third parties. Crime deterred is harm that they don’t
suffer, and the less crime and personal suffering there is in the neighborhood,
the more enjoyable community life will be. Here, the multiplier effect noted
above stemming from the imprisonment of individuals—viz., imprisonment
injures the families, friends, and neighbors of inmates—comes out in favor of
enforcing the law. After all, unless a neighborhood is an outlaw hideout like the
Hole-in-the-Wall, there will be far more residents who are victims of crime than
perpetrators.163 Enforcement of the criminal law protects them and is an essen-

160. See, e.g., Howard Campbell, Jamaican drug lord sentenced in NY to 23 years, ASSOC. PRESS
(June 8, 2012), http://bigstory.ap.org/article/jamaican-drug-lord-sentenced-ny-23-years (“Most startling
was his account of how Coke ordered his men to kill a deadbeat drug dealer nicknamed “Tall Man” by
tying him up and dismembering him with a chain saw.”); Jennifer Peltz, Ramarley Graham’s brother
convicted in gun case, ABC LOCAL (June 19, 2012), http://abclocal.go.com/wabc/story?sectionϭnews/
local/new_york&idϭ8708044.) (“Three months before Ramarley Graham was shot in his Bronx
apartment by an officer who said he thought Graham was reaching for a gun, his twin half-brothers
Hodean and Kadean Graham were charged with forming part of a destructive gang of gun-toting toughs
in central Harlem.”).
161. See, e.g., Aaron Edwards, Block in East Harlem Celebrates Defeat of Drug Gang, N.Y. TIMES
(June 24, 2012), http://www.nytimes.com/2012/06/25/nyregion/east-harlem-party-celebrates-drug-gangsdefeat.html (article about a Harlem community that was dominated by a phencyclidine (PCP) drug ring
until a sting operation; quotes from residents about how they didn’t feel safe with the gang there); Ray
Rivera, In Newburgh, Gangs and Violence Reign, N.Y. TIMES (May 11, 2010), http://www.nytimes.com/
2010/05/12/nyregion/12newburgh.html?pagewantedϭall (article about a community, an hour north of
New York City, that has been dominated by drug and gang related violence).
162. See, e.g., Shoshanna Walter, Behind Oakland Toddler’s Death, a Drug Dealer’s Story, N.Y.
TIMES (Sept. 9, 2011), http://www.nytimes.com/2011/09/09/us/09bcoakland.html?pagewantedϭall (“The
shooting might have been dismissed as another episode of drug-related violence, except that one bullet
also struck 3-year-old Carlos Nava in the neck. He bled to death on the sidewalk”.). Some things don’t
change. See, e.g., Arnold H. Lubasch, 12 Indicted On Violence In Drug Ring, N.Y. TIMES (Jan. 24,
1992), http://www.nytimes.com/1992/01/24/nyregion/12-indicted-on-violence-in-drug-ring.html (drug
dealers terrorized local area).
163. See, e.g., WESTERN, supra note 157, at 11–12 (“Even at the height of the prison boom, in the
early 2000s, less than 1% of the U.S. population was behind bars. These tiny incarceration rates should
not be surprising: prisons and jails are criminal justice institutions. Their constituents are the small
number of criminals who break the law, not the vast majority of law abiding citizens.”). The most
famous proof of that proposition is the study by Marvin Wolfgang, Robert Figlio, and Thorsten Sellin
concluding that a very small proportion of people commit a large percentage of crime, especially
serious crimes. See MARVIN WOLFGANG, ROBERT FIGLIO, & THORSTEN SELLIN, DELINQUENCY IN A BIRTH
COHORT (1972); see generally CULLEN & JONSON, supra note 49, at 111–12; WILSON, supra note 51, at
224.

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tial ingredient of an ordered society.164
A troubling issue for the criminal justice system is the large number of racial
minorities imprisoned from poor minority communities. The law enforcement
policies that have created this situation, however, are designed and carried out,
not as part of a racist plot, but to improve the lot of the innocent members of the
very same communities.165

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[D]espite the widely held belief to the contrary, blacks are not singled out
for stricter or more frequent prosecution. Nor do they receive longer sentences
once criminal history and other sentencing factors are taken into account. In
short, for ordinary violent and property crimes, the answer to the question, “Is
racial bias in the criminal justice system the principal reason that proportionally so many more blacks than white are in prison,” is no.166

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164. See, e.g., CLEAR, supra note 53, at 83–84 (informal social controls are more powerful than
formalized regulation via the criminal law); WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE
SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS (1990). Supporters of the “Broken Windows” theory of
policing—viz., the theory that aggressive police enforcement of low-level street crimes both reduces
the crime rate and enhances public safety—recognize the importance to a community of both the fact
and perception of physical safety. See, e.g., George L. Kelling, How New York Became Safe: The Full
Story, CITY J. (July 17, 2009), www.city-journal.org/2009/nytom_ny-crime-decline.html; GEORGE L.
KELLING, “BROKEN WINDOWS” AND POLICE DISCRETION (1999); GEORGE L. KELLING & CATHERINE M.
COLES, FIXING BROKEN WINDOWS: RESTORING ORDER & REDUCING CRIME IN OUR COMMUNITIES (1996);
George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety,
ATLANTIC MONTHLY, Mar. 1982, available at http://www.theatlantic.com/magazine/archive/1982/03/brokenwindows/4465/; Kees Keizer, Siegwart Lindenberg & Linda Steg, The Spreading of Disorder, 322
SCIENCE 1681 (2008).
165. Petersilia, supra note 75, at 20.
There are a number of reasons for the overrepresentation of racial minorities in prison,
including overt discrimination, policies that have different racial effects, and racial differences
in committing the kinds of crime that lead to imprisonment. However measured, rates of
criminal offending among black Americans for many crime categories are much higher that
comparable rates of offending among whites . . . . Especially for the crimes of homicide and
armed robbery, black rates of offending have been 8 and 10 times the white rate . . . .
Blumstein . . . found that, except for drug crimes and some property crimes, differential black
imprisonment rates are explained almost entirely by differential rates of offending.
Id.
166. AMY WAX, RACE, WRONGS, AND REMEDIES: GROUP JUSTICE IN THE 21ST CENTURY 91 (2009); see
KLEIMAN, supra note 9, at 22 (describing the “[c]rime to job loss to poverty to crime . . . positive feedback loop” found in “high-crime . . . low-opportunity neighborhoods”). The type of offense, however, is
relevant to this issue:
Several studies have shown that blacks are roughly seven times more likely to be imprisoned
for murder that white men, but are also seven times more likely to be arrested for murder and
to be murdered than whites. High rates of homicide among black men fully explain the
parallel high rates of imprisonment for murder. However, for less serious offenses, race
differences are not well explained by high crime rates. Black men are much more likely than
whites to be arrested for a drug offense, and to go to prison if arrested, even though they are
no more likely to use drugs than whites. Criminologists estimate that about 80 percent of the
black-white difference in imprisonment rates is due simply to the high involvement of black
men in crime. This number has likely declined with growth in the share of drug offenders in
prison.

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Even in the case of drug offenses, the racial disparity is not due to racist law
enforcement ideology, but to the relative ease of investigating drug trafficking
in open-air drug markets in minority communities167 and the unpleasant reality
that law enforcement officials are rewarded for the number of arrests they make
or convictions they obtain.168 Law enforcement practices that focus on the ease
of apprehending concentrated law violators and that do so for the purpose of
alleviating the harms that criminal activity, including open-air drug trafficking,
cause to a community, are legitimate, non-racial justifications, despite the
disproportionate effect that law enforcement has on racial and ethnic minorities.169 In fact, the failure to enforce the criminal laws in high crime areas—
particularly, inner-city minority urban communities—would render law
enforcement subject to the charge that it was denying the law-abiding members
of those communities the equal protection of the law.170 Surely, the law is not
such “a ass—a idiot” that law enforcement officers are damned if they do and
damned if they don’t.171

WESTERN, supra note 157, at 50 (footnote omitted).
167. As one expert has noted:
Drug use is widely distributed in the population, but any sensible observer would have known
that these changes in penal practices [i.e., the post-1980 increase in the drug offense penalties]
would affect people of color disproportionately to their number in the drug using population.
Drug markets are concentrated in poor, urban areas. Street-level drug distribution is an
occupation dominated by poor African-American (and to a lesser extent in some regions,
Hispanics) males who live in areas where other legitimate labor-market choices are limited.
While it is commonly speculated that drug cartels have racial and ethnic diversity at the top, it
is beyond speculation that most visible street-level distributors are dominantly young men of
color. Enforcement practices that concentrate undercover work on apprehending street dealers
in impoverished neighborhoods, where open-air drug markets tend to operate, further guarantee that those arrested on drug-distribution charges will be disproportionately young men of
color who live and work their trade in the poorest locations. The highly elastic nature of the
employment market in drugs—every time a young black man is arrested and sent to prison for
drug crime, a new recruit can be found to take his place—guarantees a nearly inexhaustible
supply of prison candidates.”
CLEAR, supra note 53, at 54–55 (emphasis in original).
168. See Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases,
45 N.Y.U. L. REV. 785, 793 (1970) (police departments reward arrests, not convictions); Gene Healy,
There Goes the Neighborhood: The Bush-Ashcroft Plan to “Help” Localities Fight Gun Crime,” in GO
DIRECTLY TO JAIL: THE CRIMINALIZATION OF ALMOST EVERYTHING 93, 105–06 (Gene Healy ed., 2004)
(“Statistics on arrests and convictions are the Justice Department’s bread and butter.”).
169. See, e.g., United States v. Armstrong, 517 U.S. 456 (1996) (rejecting equal protection challenge
to crack cocaine drug enforcement practices that lead to racially disproportionate results); McCleskey v.
Kemp, 481 U.S. 279 (1987) (rejecting challenge to capital punishment charging decisions). Whether
those same law enforcement practices are a sound policy is an entirely different question.
170. The best discussion of underenforcement of the criminal law as a violation of equal protection
can be found in Randall Kennedy’s work. See RANDALL L. KENNEDY, RACE, CRIME, AND THE LAW (1997);
Randall L. Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 HARV. L.
REV. 1255 (1994).
171. CHARLES DICKENS, OLIVER TWIST 489 (Macmillan 1970) (1838) (“‘If the law supposes that,’ said
Mr. Bumble, . . . ‘the law is a ass—a idiot.’”).

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III. THE CASE FOR REVISITING EARLY RELEASE

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So far, critics and supporters of incapacitation have wrestled themselves to a
draw. If so, the question arises whether something can and will change the
status quo. Is the time ripe for a change? I think so.
Some public policy theorists have argued that political change comes about
when three “streams” come together: (1) the problem stream—viz., the existence of a problem large enough in breadth and depth that ignoring it or hoping
that it will go away is too costly to endure (e.g., illegal immigration); (2) the
policy stream—viz., the refinement of (sometimes conflicting) recommended
solutions to that problem (e.g., greater border protection vs. amnesty); and
(3) the political stream—viz., the occurrence of an event (e.g., election of a
President) that jars the public and political forces into action.172 Part II discussed the problems we have today. Part I discussed some of the mechanisms
historically used to address such problems. This part will address some of the
political factors that might coalesce to prompt public policymakers to respond
to those problems. There are, in fact, a number of such factors that could nudge
policymakers into reconsidering the utility and desirability of early release.
A. The Inevitable Return of Prisoners to the Community

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According to Jeremy Travis, Dean of the John Jay College of Criminal
Justice, “the iron law of imprisonment” is that, “[e]xcept for those few individuals who die in prison, every person we send to prison returns to live with us.”173
As of the end of 2010, there were approximately 6.5 million people under
supervision by the criminal justice system, with approximately 1.6 million of
them in custody in federal or state prisons or local jails. Perhaps 95 percent of
those prisoners eventually will be released from custody. Only a small fraction
of inmates serving a death or life sentence will die while imprisoned.174 If so,
the argument goes, it makes little sense to forego any attempt to educate, train,
detoxify, or reform them while they are in custody or to supervise their efforts
to reintegrate into society when they are free.175
Prisoners who lack education, skills, support from family, friends, or community, and maybe even a driver’s license, Social Security card, or birth certificate,
have few opportunities to make an honest living once released from custody and

172. See, e.g., JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2d ed. 1995). For an
illustration of that theory at work, see Paul J. Larkin, Jr., John Kingdon’s “Three Streams” Theory and
the Antiterrorism and Effective Death Penalty Act of 1996, 28 J. L. & POL. 25 (2012).
173. TRAVIS, supra note 49, at xvii.
174. See S. REP. NO. 110-397 (2008) (“According to the U.S. Department of Justice, Bureau of
Justice Statistics, an estimated 95 percent of all State prisoners will be released . . . .”); PETERSILIA,
supra note 6, at v, 3; TRAVIS, supra note 49, at xvii.
175. More than 40% of first time offenders have a history of drug use. Petersilia, supra note 75, at
29.

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therefore are likely to recidivate.176 Prisons are expensive,177 more so than
in-prison rehabilitation programs, so rehabilitation, if possible, or non-prison
confinement, if workable, may not just be morally laudable, but also economically sensible. Former Chief Justice of the Supreme Court Warren Burger, who
was hardly known as being “soft on crime,” made that point, remarking that a
correctional policy focused entirely on incapacitation is “folly,” “wrong,” “expensive,” and “stupid.”178
B. The Continuing Hope for Rehabilitation

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Despite our current punitive approach to crime, it would be a mistake to
believe that society has buried the rehabilitative ideal.179 It is true that Congress
prohibited district courts from considering the possibility of rehabilitation when
deciding whether and for how long to imprison an offender.180 But Congress
permitted sentencing courts to consider rehabilitation in other contexts, such as
when deciding whether to impose probation or supervised release.181 Congress
also has granted the Federal Bureau of Prisons plenary authority to decide what
in-custody educational, vocational, or substance abuse treatment programs are
best for each prisoner.182 If Congress had believed that those programs were
useless, it would have ordered them discontinued.
Moreover, criticisms advanced against rehabilitation were voiced widely, but
not universally. Defenders, then and now, argued that critics of the efficacy of
rehabilitation had overstated their case,183 that rehabilitation had never been

176. See 42 U.S.C. § 17501 (2006); H.R. REP. NO. 110-140 (2007); PETERSILIA, supra note 6, at 4.
177. See DOJ Letter, supra note 50, at 2; supra text accompanying notes 84– 89.
178. “We must accept the reality that to confine offenders behind walls without trying to change
them is an expensive folly with short-term benefits—winning battles while losing the war. It is wrong.
It is expensive. It is stupid.” PETERSILIA, supra, note 6, at 93 (quoting former U.S. Supreme Court Chief
Justice Warren Burger) (internal quotation marks and citations omitted).
179. It also may be a mistake to believe that society ever accepted it without reservation. See id. at
61 (“[P]arole-as-rehabilitation was never taken very seriously, and from its inception prison administrators used it parole primarily to manage prison crowding and reduce inmate violence.”).
180. See, e.g., 18 U.S.C. § 3582(a) (2006) (a district court may not consider the possibility of
rehabilitation when deciding whether to imprison an offender or for how long to incarcerate him); 28
U.S.C. § 994(k) (the U.S. Sentencing Commission may not consider rehabilitation when promulgating
guidelines); Tapia v. United States, 131 S. Ct. 2382, 2388-92 (2011); Mistretta v. United States, 488
U.S. 361, 367 (1989).
181. See, e.g., 18 U.S.C. § 3563(a)(4) (domestic violence offender rehabilitation program is a
mandatory condition of probation); 18 U.S.C. § 3563(b)(9) (medical, psychiatric, or substance abuse
treatment is a discretionary condition of probation); 18 U.S.C. § 3583(d) (domestic violence offender
rehabilitation program is a mandatory condition of supervised release); Tapia, 131 S. Ct. at 2390.
182. See, e.g., 18 U.S.C. § 3621(e) (substance abuse treatment); 18 U.S.C. § 3621(f) (sex offender
treatment); Tapia, 131 S. Ct. at 2390–91.
183. In the 1970s, several studies concluded that prior efforts at prisoner rehabilitation had been a
failure. See, e.g., DOUGLAS LIPTON, ROBERT MARTINSON & JUDITH WILKS, THE EFFECTIVENESS OF CORRECTIONAL TREATMENT: A SURVEY OF TREATMENT EVALUATION STUDIES (1975); Robert Martinson, What Works?
Questions and Answers About Prison Reform, 35 PUB. INT. 22 (1974) (concluding that there was no
reliable evidence that rehabilitation had worked or could work); THE REHABILITATION OF CRIMINAL
OFFENDERS: PROBLEMS AND PROSPECTS (Lee Sechrest, Susan White & Elizabeth Brown, eds., 1979)

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given a fair chance to succeed because of insufficient funding for personnel
(e.g., parole officers)184 and programs (e.g., drug treatment, job training),185 and
that flaws in the system could and should be fixed before the entire rehabilitative ideal is tossed overboard.186 Underlying that position is a fundamental,
longstanding belief in the possibility of redemption and a desire to give everyone a second chance.187 F. Scott Fitzgerald once said that “[t]here are no second
acts in American lives.”188 Maybe, but perhaps there’s room.
Some recent public policy choices give effect to those ideals. There has been
a heightened interest in prisoner “re-entry” programs—a new term perhaps
adopted in order to avoid the very negative connotations that the old term
“parole” still has in some quarters—and that interest has generated some new
legislative victories for critics of punitive approaches to criminal justice.189 For
example, in his 2004 State of the Union Speech, President George Bush urged
the Congress to give inmates a second chance,190 and a few years later Congress
enacted the Second Chance Act of 2007, authorizing grant programs for re-entry

(agreeing with Martinson); WILSON, supra note 51, at 189–90, 193, 247 nn. 18–20 (citing studies
concluding that rehabilitative efforts had been unsuccessful and arguing that the purpose of the
correctional system should be “to isolate and to punish, not to reform,” because we do “not know how
to do much else”); see generally S. REP. NO. 98-225, 38–40 & n.16 (1983); Mistretta v. United States,
488 U.S. 361, 363–64, 366–67 (1989); CULLEN & JONSON, supra note 49, at 33. Robert Martinson, one
of the leading researchers, backpedalled somewhat a few years later, see Robert Martinson, New
Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 HOFSTRA L. REV. 243 (1979),
but his initial views continued to hold sway over public opinion, see CULLEN & JONSON, supra note 49,
at 33. Other nations, such as Great Britain, Canada, and Australia, however, also questioned the
effectiveness of rehabilitation. GOTTSCHALK, supra note 36, at 38.
184. The ideal caseload for a parole officer is thirty-five prisoners. See PRESIDENT’S COMM’N ON LAW
ENFORCEMENT AND THE ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 402 (1968). The
average caseload, however, is between sixty-six and eighty, which allows time for only one fifteenminute in-person meeting every two months. See Alfred Blumstein & Allen J. Beck, supra note 57, at
52; PETERSILIA, supra note 6, at 84.
185. “Their poor public image leaves probation and parole agencies woefully underfunded, and
unable to compete effectively for scarce public funds. Nationally, probation and parole receive about
fifteen percent of state and local government expenditures, even though they supervise seventy percent
of correctional clients . . . .” Petersilia, supra note 75, at 487.
186. See GOTTSCHALK, supra note 36, at 39; PETERSILIA, supra note 6, at 3–6, 93.
187. “[T]he belief that a core function of prisons should be rehabilitation is woven deeply into the
nation’s cultural fabric. This belief in reforming offenders may become frayed at times, but it is durable
enough to avoid becoming fully unravelled.” CULLEN & JONSON, supra note 49, at 29.
188. Robert McCrum, Great Scott! Fitzgerald is enjoying a third act, THE GUARDIAN (Feb. 4, 2012),
http://www.guardian.co.uk/books/2012/feb/05/scott-fitzgerald-gatsby-mccrum.
189. In 2003, the federal government established the Serious and Violent Offender Re-entry Initiative (SVORI), a collaborative effort to improve prisoner reintegration into the community by underwriting creation of large, multi-site state and local prisoner re-entry initiatives. See H.R. REP. NO. 110-140,
3 (2007). For a study, prepared for the National Institute of Justice and recently published, that
thoroughly discusses the SVORI, see PAMELA K. LATTIMORE ET AL., NAT’L INST. OF JUSTICE, PRISONER
REENTRY SERVICES: WHAT WORKED FOR SVORI EVALUATION PARTICIPANTS? (2012), https://www.ncjrs.gov/
pdffiles1/nij/grants/238214.pdf.
190. “America is the land of [the] second chance, and when the gates of the prison open, the path
ahead should lead to a better life.” George W. Bush, State of the Union Address (Jan. 20, 2004),
available at http://georgewbushwhitehouse.archives.govnews/releases/2004/01/20040120-7.html.

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of offenders into the community.191 States and governors have directed their
representative organizations to address the problem of prisoner re-entry.192 New
research, defenders maintain, shows that various types of in-prison services—
such as basic adult education programs, vocational and technical training, GED
classes, cognitive-behavioral drug or alcohol treatment, life skills training (e.g.,
managing a checking account)—have shown success at reducing recidivism,193
and they cost far less than the expenses of incarceration.194 New tools—e.g.,
electronic and GPS monitoring, the “now ubiquitous drug testing,”195 etc.—also
exist to help parole officers more efficiently supervise parolees,196 and new
approaches to parole supervision—e.g., “neighborhood parole”—are being considered in order to increase community involvement with parolees and law
enforcement.197 The bottom line is that even if rehabilitation could no longer be

191. Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified at 42 U.S.C. §§ 17501–55); see S. REP. NO.
111-229, at 70 (2010) (“The Second Chance Act . . . imposed new requirements on BOP to facilitate the
successful reentry of offenders back into their communities and reduce the rate of recidivism. Among
those requirements are the establishment of recidivism reduction goals and increased collaboration with
State, tribal, local, community, and faith-based organizations to improve the reentry of prisoners.”);
H.R. REP. NO. 111-149, at 71 (2009) (“The Second Chance Act clarified that BOP has the authority to
place offenders in community corrections, including residential reentry centers (RRCs), for up to 12
months to facilitate their successful reentry and reduce recidivism. In addition, the Act directed BOP to
provide incentives, such as increased time in community corrections, to encourage prisoners to fully
participate in skills development programs. The Second Chance Act also makes clear that community
corrections may include a period of home confinement for up to the shorter of 10 percent of an
offender’s term of imprisonment or six months.”); S. REP. NO. 110-397, at 72–73 (2008) (appropriations
recommendation for Second Chance Act); H.R. REP. NO. 110-919, at 110 (2008) (same); H.R. REP. NO.
110-140, at 1 (2007) (committee report accompanying House version of the act).
192. The Council on State Governments has created a Reentry Policy Council. The National
Governors Association has established a Reentry Policy Academy. And the Urban Institute has adopted
a Reentry Roundtable. Travis & Visher, supra note 138, at 1–2.
193. There is some, albeit limited, evidence that participation in prison programs decreases recidivism. See Cullen, supra note 46, at 259–276, 287; MICHAEL JACOBSON, DOWNSIZING PRISONS 180 (2005)
(listing academic skills training, vocational skills training, cognitive skills programs, and drug treatment
and sex-offender intervention programs); Petersilia, supra note 134, at 500–02 (drug treatment programs); id. at 502–04 (work programs such as Texas’s RIO (Re-Integration of Offenders) Program,
New York City’s Center for Employment Opportunities, and Chicago’s Safer Foundation); Richard
Rosenfeld et al., The Contribution of Ex-Prisoners to Crime Rates, in CRIME: PUBLIC POLICIES FOR CRIME
CONTROL, supra note 57, at 80, 92. It is a mistake to conclude, however, that a program is effective only
if it reduces 50–90% of the recidivism rate. A reduction of just 5–20% can be valuable and costeffective. See H.R. REP. NO. 110-140, at 3–4 (2007).
194. See H.R. REP. NO. 112-169, at 64 (2011) (“[C]ase studies of innovative, evidence-based
practices provide a strong indication that” the unchanged, high reincarceration rates for released
offenders in the past twenty years “can be reversed . . . .”); H.R. REP. NO. 110-140, at 5 (2007);
PETERSILIA, supra note 6, at 4–5.
195. Blumstein & Beck, supra note 57, at 55.
196. PETERSILIA, supra note 6, at 77. The Supreme Court recently held that the surreptitious
placement of a GPS tracking device on the defendant’s vehicle constituted a search, requiring probable
cause and a warrant (or an exception to the warrant requirement). See United States v. Jones, 132 S. Ct.
945 (2012). That decision is of no help to parolees, however, because they can be subjected to a search
simply by virtue of their parole status alone, even without a reasonable suspicion of criminal activity.
See Samson v. California, 547 U.S. 843 (2006).
197. Petersilia, supra note 134, at 506.

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accepted as the sine qua non legitimate rationale for punishment, it could be
accepted back into the fold that now includes only incapacitation and deterrence. If so, some form of early release would be a familiar mechanism for
accomplishing those goals.
IV. EARLY RELEASE OPTIONS
As discussed above, executive clemency, parole, and good-time credits are
the mechanisms that the criminal justice system has traditionally used to afford
prisoners an early release. At one time or another, and for one reason or another,
the criminal justice system has largely forsaken reliance on those tools. If
legislatures find themselves forced by economics to readdress the correctional
process, the tools that politicians and administrators have used in the past could
be brought out of the garage, dusted off, and started up. If nothing else, actors in
the political branches and correctional processes may use those devices as
short-term solutions until something better comes along.
The question then becomes, which one or ones? My guess is that we will not
see a resurgence in the use of executive clemency or parole (or some new
variant of them), but that we may see greater use of good-time credit laws.
A. The Unlikely Political Reawakening of Clemency

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Start with the executive clemency process. Clemency is the easiest mechanism to use to restart the prisoner release process. The federal and state
constitutions vest that power in presidents and governors, so no legislation is
needed. Administrative mechanisms already exist to process clemency applications, so no agency needs to be created and staffed to handle this task.198 The
question, then, is whether we will see presidents and governors revitalize the
clemency process.
That outcome is unlikely. There are several reasons why presidents and
governors used clemency more frequently in the eighteenth and nineteenth
centuries than they did in the twentieth century, especially the last fifty years.
Improvements in the mechanisms of the criminal justice system made it largely
unnecessary for the president to review individual cases to release prisoners
incarcerated due to a miscarriage of justice.199 Adoption of parole and sentenc-

198. In the federal system, clemency applications are first reviewed by the Office of the Pardon
Attorney at the Department of Justice, which forwards recommendations to the White House. See 28
C.F.R. §§ 0.35, 1.1 to 1.11 (2011); Office of the Pardon Attorney, U.S. DEP’T OF JUSTICE, http://
www.justice.gov/pardon/ (last visited Oct. 25 2012). Of course, the staffing for that office would need
to be increased if it became the only mechanism for prisoner release decisions, but that eventuality is
quite unlikely, for the reasons given below in the text. For a discussion of the problems with that
process, see Love, supra note 31.
199. At common law, a defendant charged with a felony was not entitled to be represented by
counsel. See Powell v. Alabama, 287 U.S. 45, 60 (1932); FRIEDMAN, supra note 33, at 27. Today, the
state cannot sentence a defendant to a term of imprisonment unless he has been afforded the right to
obtain counsel or, if he is indigent, to have one appointed for him. See Argersinger v. Hamlin, 407 U.S.

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ing guidelines generally reduced the need for the chief executive to intervene in
the case of a prisoner burdened with an unduly severe sentence. The result was
that the executive could generally rely on the modern criminal justice system to
accurately separate the innocent from the guilty and to tamp down punishments
that were two or more standard deviations from the norm. To that extent, just as
a drop in emergency room visits may reflect improved community medical care,
the decline in the frequency of the exercise of executive clemency may be
evidence of an overall improvement in the criminal justice system.
There also are other, less noble reasons why we should not expect chief
executives to exercise their clemency powers more frequently in the future than
they have in the recent past. The visibility of the president’s or governor’s
clemency decision makes it a politically risky event. On the one hand, a chief
executive generally gains no “political boost” from the exercise of clemency.200
On the other hand, he exposes himself to a serious risk of adverse consequences
if he makes a mistake and releases someone who commits a horrific crime or
whose release generates public outrage. That risk is especially potent given
today’s 24/7/365 news cycle.201 In fact, one of the rationales for adoption of
parole was to shift the responsibility, and therefore the potential blame, from the
chief executive to the parole board. Parole release decisions took the heat off
the governor and dropped it into the parole board’s lap.202 Because governors
often appointed parole board members, the governor was also able to indirectly
lessen the risk that boards would make release decisions that were out of sync
with the governor’s policy and political beliefs.203
Atop that, unfortunately some executives have used the pardon power for
ignoble reasons. Some state governors have used clemency for profit, and
President Bill Clinton used it promiscuously as he walked out the door.204 In
fact, Clinton’s improper exercise of clemency probably has poisoned the well
25, 37 (1972). There is virtually no aspect of the criminal trial process that is not regulated by one or
more provisions of the Constitution. See, e.g., Crawford v. Washington, 541 U.S. 36, 50–51 (2004) (the
Sixth Amendment Confrontation Clause guarantees a defendant the right to be confronted with the
witnesses against him and therefore limits use at trial of out-of-court statements); Apprendi v. New
Jersey, 530 U.S. 466, 483–84 (2000) (the Sixth Amendment Jury Trial Clause guarantees a defendant
the right to have the jury make all findings necessary for a sentence to be imposed in excess of the
statutory maximum); Brady v. Maryland, 373 U.S. 83, 87 (1963) (Due Process Clause requires
disclosure to the defense of exculpatory information in the prosecutor’s possession upon request).
Finally, criminal justice systems today include an appellate process that provides at least one layer of
oversight for the trial or plea-bargaining processes. The Constitution does not guarantee a defendant the
right of appeal, see McKane v. Durston, 153 U.S. 684, 686–88 (1894), but every state has an appellate
system, and the Constitution plays a role (albeit limited) in regulating access to it. See, e.g., Halbert v.
Michigan, 545 U.S. 605, 610 (2005) (holding that an indigent defendant has a right to appointed
counsel on his first appeal).
200. CROUCH, supra note 16, at 145.
201. See id. at 4–5.
202. See FRIEDMAN, supra note 33, at 162; PETERSILIA, supra note 6, at 61.
203. See FRIEDMAN, supra note 33, at 162; PETERSILIA, supra note 6, at 61.
204. See, e.g., CROUCH, supra note 16, at 114–17; Albert W. Alschuler, Bill Clinton’s Parting Pardon
Party, 100 J. CRIM. L. & CRIMINOLOGY 1131 (2010). Former President Jimmy Carter said that Clinton’s

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for presidents and governors alike for some time to come, a particularly
unfortunate consequence given the value of clemency in the criminal justice
system. The result is that executive clemency will likely not come back to play
a major role in prisoner release decisions.
B. The Unlikely Political Resurrection of Parole
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It is also unlikely that parole will resurface in the form widely used in the
twentieth century.205 Both the right and the left landed numerous, crippling
blows to the original, romantic theory and practice of parole. Parole was too
lenient for offenders and too discriminatory. Parole was ineffective at stemming
crime and at rehabilitating prisoners. Parole placed trial judges and parole
boards at odds, as each one tried to outguess the other regarding when a
prisoner should be considered for release. Parole asked the impossible of
correctional officials, because no one could satisfactorily predict when (if at all)
an inmate had been rehabilitated, and of prisoners, because maintaining stable
relationships in the community was an impossible task for someone hundreds
(or more) miles from home. Parole was dishonest because it encouraged prisoners and parole boards to follow a script at release hearings and because it was
used to ease prison overcrowding, not to further rehabilitation. And parole was
illegitimate because it allowed only a narrow class of offenders—i.e., ones with
community ties and good acting skills—to obtain release. Returning parole to
its predominant place in corrections would require legislators to admit that they
made a mistake in abandoning parole or to confess that they are rebirthing a
policy previously thrown away. Newer legislators could do so by blaming their
predecessors, but politicians who are long in the tooth may not have that excuse.
At a minimum, policymakers would feel the need to devise a new moniker for
parole—e.g., a “limited custodial opportunity”—or to steal an existing trademark—e.g., “supervised release”—in order to make it sellable to the public.
But hope springs eternal.206 Several experts have encouraged “reinventing”

decision to pardon the financial fugitive Marc Rich was “‘disgraceful.’” CROUCH, supra note 16, at 114
(internal quotation marks omitted) (citation omitted).
205. In a forthcoming article, I will explain that the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), had the ironic and unintended effect of bringing the federal parole laws
back to life. The reason is that Congress’ decision to repeal the parole statutes when it adopted a
sentencing guidelines system in 1984 was contingent upon the constitutionality of a mandatory
guidelines system, and the Supreme Court’s decision in Booker held a mandatory guidelines system
unconstitutional. See Paul J. Larkin, Jr., Parole: Corpse or Phoenix?, 50 AM. CRIM. L. REV. (2013)
(forthcoming). If I am right in that regard, then the federal parole system has been reborn by operation
of law, and there is no need for Congress to decide whether to readopt a parole system. Parole could be
used once again to release prisoners who no longer need to be punished or to deal with prison
overcrowding. If I am proved wrong about that effect of the Booker decision, however, then the issue
arises whether Congress should re-enact a parole system. For the reasons given below in the text, I find
it unlikely that the political process will choose that route.
206. “Hope springs eternal in the human breast: Man never is, but always to be blest.” ALEXANDER
POPE, AN ESSAY ON MAN ep. 1 (1734), available at http://www.gutenberg.org/files/2428/2428-h/2428-h.
htm.

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parole.207 Michael Jacobson, President of the Vera Institute and former Commissioner of the New York City Departments of Correction and Probation, believes
that society can make parole work, but needs to front load the system. Risk
assessment should be used to decide whether and when to release prisoners.
Parole resources are most needed and beneficial in the first year of an offender’s
release. Critical are the elimination of structural barriers to successful reintegration, such as restrictions on licenses to enter certain professions (e.g., barbers),
and elimination of the eligibility restrictions on access to funding for college
education programs.208 Like Jacobson, Mark Kleiman, Professor of Law and
Public Policy at UCLA, recommends targeting resources at the most likely
reoffenders, as well as increasing the certainty and celerity of punishment by
holding expedited parole revocation proceedings when a parolee violates a
release condition.209 Joan Petersilia, a faculty member at the Stanford Law
School, has offered similar proposals.210
The likelihood that legislators will resurrect parole, however, is minimal. The
principal reason why is that time has not erased the well-known criticisms
levied against parole in the twentieth century and found persuasive by the
federal and most state governments. Legislators prefer to endorse new solutions
to old problems because it gives them the opportunity to appear visionary and to
form their own, new coalitions to endorse their initiatives. If legislators sought
to bring back parole, they would be seen as unimaginative for using someone
else’s idea, and they could be labelled as simple-minded for thinking that no one
would remember why society rejected parole thirty years ago. Even offering to
beef up the supervision over parolees at the front end of the process would not
stave off those adverse reactions. The response from the right would be that
enhanced supervision cannot be accomplished without an expensive increase in
207. See, e.g., JACOBSON, supra note 193, at 158–72; Petersilia, supra note 134, at 497–507.
208. See JACOBSON, supra note 193, at 166–72, 292.
209. See KLEIMAN, supra note 109.
210. Based on her review of the literature and her own experience, Petersilia concludes that there
may be “an emerging consensus about what needs to be done.” It involves at least five steps:
1. Identify the most dangerous and violent offenders, for whom surveillance through human
and technological means is a top priority.
2. Deliver quality treatment (particularly for substance abuse) and job training programs to
the subgroup of offenders for whom research shows it could be most beneficial.
3. Create the ability to identify and respond quickly to probation and parole violations,
particularly those involving drug use.
4. Establish an array of credible intermediate sanction programs to divert true technical
violators away from expensive prison cells.
5. Commit to a community-centered approach to offender supervision and management,
which means getting officers out of their offices and having them work interactively with
victims, law enforcement, offenders, and families.
Petersilia, supra note 134, at 498.
Those experts and others recommend expanding opportunities for offenders to participate in substance abuse programs. See, e.g., JACOBSON, supra note 193, at 180; Petersilia, supra note 134, at
500–02. Such programs would be valuable regardless of whether and, if so, how parole comes back to
life.

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supervision resources (e.g., an increased number of parole officers). The response from the left would be that recent attempts at intensive parole resulted in
a greater-than-otherwise incidence of parole revocations, not an increase in
success stories. Why?—Because the parole process has become focused on
oversight of parolees to ensure that they do not embarrass parole officials for
releasing them, not on assisting parolees in starting over.211 Accordingly, it
seems unlikely that parole’s supporters would be able to generate the critical
mass necessary to change public policy.
C. The Possible Creation of a Hybrid System

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Even though neither clemency nor parole is likely to re-emerge as the
principal vehicle for deciding whether and when to release prisoners, it is
possible that a hybrid form of those two institutions could emerge instead. For
example, some scholars have proposed revising the federal clemency process in
order to revitalize its use in a manner that avoids the political debacles that
occurred when Clinton issued his last-minute pardons and fix some of the
structural problems with the process that exist today.212
The current federal clemency process places the responsibility for screening
applications largely in the hands of the Justice Department, particularly a small
office known as the Office of the Pardon Attorney.213 FBI agents investigate
every clemency request, and the Pardon Attorney and his staff review the results
and make a clemency recommendation to the Deputy Attorney General, who
decides whether to forward that recommendation to the President via the Office
of the White House Counsel.
An obvious problem with the current process is the inherent conflict of
interest created by using the Justice Department as the gatekeeper for clemency
requests. It is unreasonable to expect that an adversary can offer an entirely
dispassionate appraisal of a party’s repentance. Even if the department could do
so, granting the department a veto over a clemency application certainly does
not satisfy the requirement that justice not only must be done, but also must
appear to be accomplished. Having prosecuted a clemency applicant, the Justice
Department is in a good position to offer an opinion regarding the character of
the applicant, but it should not be empowered to kill a clemency application in
the cradle.
One alternative is to create an independent commission that considers every
clemency application. The members of the commission could be drawn from
the ranks of senior or retired federal judges, former Justice Department officials,
defense counsel, and members of the general public. The commission could use

211. See, e.g., CLEAR, supra note 53, at 183–84 (describing the failure of California’s Intensive
Parole Supervision field experiment).
212. See, e.g., Rosenzweig, supra note 20.
213. For a description of the workings of the federal clemency process, see Love, supra note 31;
Rosenzweig, supra note 20.

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former or current FBI agents to conduct the necessary investigation. The
commission could be empowered to send its recommendations, whether thumbs
up or thumbs down, to the President via the White House Counsel. The Justice
Department would be able to offer an opinion on the clemency application, but
would not have the veto power that it currently enjoys. Congress also could
decide that, if the commission decides in favor of a sentence commutation, the
commission should be authorized to file a motion in the trial court asking the
court to reduce the prisoner’s sentence. In this way, the commission would
afford a prisoner the opportunity for an independent “second look” at his
sentence, a function that parole boards historically provided.
Current federal law has a somewhat comparable mechanism. The Sentencing
Reform Act of 1984214 grants district courts authority, on motion by the federal
Bureau of Prisons, to reduce a prisoner’s sentence before he has completed his
prison term (even to “time served” so that he can be released immediately) in
limited circumstances—namely, if “extraordinary and compelling reasons warrant such a reduction.”215 Congress believed that this provision would operate
as a “safety valve” for use in cases such as those known as “compassionate
release,” that is, the early release of a prisoner suffering from a terminal
illness.216 A precondition in every case, however, is that the Bureau of Prisons
must file a motion with the district court seeking a reduction in the offender’s
sentence. Without that motion, a district court lacks authority to reduce a
prisoner’s sentence, regardless of his circumstances.217 If Congress decided to
create a commission to give each prisoner a “second look” at his sentence,

214. Pub. L. No. 98-473, tit. II, ch. 2, 98 Stat. 1837, 1987 (codified as amended in scattered sections
of 18 and 28 U.S.C.).
215. See 18 U.S.C. § 3582(c)(1)(A)(i) (2006).
216. S. REP. NO. 98-225, at 121 (1983). The provision would enable a district court to shorten a
prisoner’s term of confinement, “regardless of the length of [the prisoner’s] sentence,” in the “unusual
case in which the defendant’s circumstances are so changed, such as by terminal illness, that it would
be inequitable to continue the confinement of the prisoner.” Id. The Bureau of Prisons has narrowly
interpreted its statutory authority. See FED. BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, CHANGE NOTICE
NO. 5050.46, PROGRAM STATEMENT CONCERNING COMPASSIONATE RELEASE; PROCEDURES FOR IMPLEMENTATION OF 18 U.S.C. 3582(c)(1)(A) & 4205(g) (1998), http://www.bop.gov/policy/progstat/5050_046.pdf
(indicating that prisoners can receive compassionate release only for extraordinary or extremely grave
medical circumstances); William W. Berry III, Extraordinary and Compelling: A Re-Examination of the
Justifications for Compassionate Release, 68 MD. L. REV. 850, 852–53 (2009). By contrast, the U.S.
Sentencing Commission has concluded that there are additional circumstances in which it is appropriate
to release an offender before he has completed his prison term. In addition to having a terminal illness,
a prisoner should be considered for compassionate release under the Commission’s policy statements if
any of the following additional factors is present: the prisoner is so physically incapacitated that he
cannot engage in self-care; the only family member able to care for a minor child has died or become
physically incapacitated; and there is another “extraordinary and compelling” reason for compassionate
release. U.S. SENTENCING COMMISSION, GUIDELINES MANUAL § 1B1.13 cmt. (2008).
217. See Fernandez v. United States, 941 F.2d 1488, 1493 (11th Cir. 1991); Turner v. U.S. Parole
Comm’n, 810 F.2d 612, 618 (7th Cir. 1987); Marjorie Russell, Too Little, Too Late, Too Slow:
Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse than the Disease?, 3 WIDENER J.
PUB. L. 799, 816 (1994) (“There is a federal statutory provision for compassionate release, but it is a
tool for the Bureau of Prisons to use and not an alternative available to the prisoner himself.”).

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Congress should consider granting that commission the authority to file a
motion in the trial court on its own, without the prior approval of the Bureau of
Prisons. Otherwise, the Justice Department, the parent agency for the Bureau of
Prisons, again will hold a veto power over clemency applications.
D. The Possible Expansion of Good-Time Credit

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By contrast, there may be an opportunity to expand the use of good-time
credits. The academy has never displayed the same scorn for good-time laws as
for parole, and policymakers would not feel that they are repeating a mistake if
they decided to increase the availability of credit for prisoners. More importantly, good-time laws never have been as politically volatile with the electorate,
and have never generated the same visceral, adverse reaction from the public as
have the parole laws. Perhaps that is because good-time credit laws were never
justified as a pillar of the rehabilitative process, and so did not collapse when
public acceptance of the rehabilitative ideal eroded. Perhaps that is because the
availability of good-time credit was universally accepted as a necessary tool for
wardens to prevent institutions from becoming a Hobbesian state of nature.
Perhaps that is because a warden’s decision to revoke good-time credit is
retrospective in nature and based on objective events—e.g., an in-prison assault—
rather than, as in the case of parole, prospective in nature and resting on a
subjective prediction about human nature—viz., an offender’s rehabilitation.218
And, perhaps, that is because the effect of a good-time credit decision—viz.,
whether to award or revoke 10–54 days’ credit per year toward early release—
pales by comparison with parole decisions—viz., whether to shave two-thirds or
more off of a prisoner’s sentence. Factors such as these may explain why the
good-time laws have survived relatively unscathed throughout the turbulent
period from the 1960s to the present.219
Of course, a warden’s good-time decision could always be subjected to the
same criticisms levied against a parole board’s release decisions. Prisoners
denied good-time credits surely will argue that the warden’s decisions are just
as arbitrary and discriminatory as a parole board’s. More fundamentally, parole’s critics could maintain that using good-time laws rather than parole to
modify a prisoner’s sentence was simply a disguise for the predictions of
rehabilitation and future dangerousness that underlie parole release decisions.
The claim that good-time laws can work better than parole laws at deciding
when to release a prisoner, many will argue, is just a charade. Since no
politician likes to be called a charlatan, those arguments need a strong response.
218. The current feature in the federal good-time statutes that good-time credits vest once awarded
certainly strengthens that possibility.
219. For example, Congress retained the good-time provisions of existing federal law when it
revised the sentencing process and repealed parole in 1984 in the Sentencing Reform Act of 1984, Pub.
L. No. 98-473, tit. II, ch. 2, 98 Stat. 1837, 1987 (codified as amended in scattered sections of 18 and 28
U.S.C.). See Barber v. Thomas, 130 S. Ct. 2499, 2504 (2010); Mistretta v. United States, 488 U.S. 361
(1989).

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There is reason, however, to be optimistic. Start with the fact that good-time
laws significantly predate the birth of parole and never have been the subject of
the type of intensive, sustained criticism that ultimately withered parole.220 In
the eyes of the public, good-time laws have earned a presumption of respectability that parole lacks today. Moreover, the decision to award (or revoke) goodtime credit is materially different from a parole decision. When deciding
whether to award (or revoke) good-time credit, a warden analyzes past conduct
within a defined period (e.g., a year), a far more objective task than predicting a
likely course of events over an indefinite future. A prisoner must earn good-time
credit toward release for past good conduct; he does not receive it based on a
prediction that he will go and sin no more. It is easier for a politician to sell the
public on a policy that permits early release only if the prisoner has earned that
opportunity.221 It would not be difficult to characterize an expanded good-time
credit program as an example of precisely the type of “second chance” that
America stands for and that everyone should receive. Indeed, public officials
could sell an expanded good-time program to those who still urge reliance on
rehabilitation as the primacy justification for punishment as a way to enable
prisoners to prove their rehabilitation. A warden also would be in a better
position than a parole board to judge the prisoner’s behavior, since a warden
works at the prison and is a career official, not a political appointee. Furthermore, while increasing the amount of good time available at the back end of the
process may have the same effect as lowering the statutory sentences at the
front end, it does so without a guarantee of a lesser punishment. Finally, if we
add in the fact that the amount of good-time credit available would be significantly less than what parole offered, it would be more difficult for an opponent
to maintain that advocates for a revised good-time system are just painting an
attractive portrait of a homely ancestor. Arguments such as those could give
legislators a shield against the “soft-on-crime” blowback that could occur or to
the charge that they are retreating to a position already proved indefensible.
That is, if legislators see penological, fiscal, or humanitarian value in an
expanded good-time policy, those arguments could give legislators the political
cover they need.
How, then, to revise the good-time system? One approach would be to
increase the potential credit from, for example, the current 54 days per year
available to federal prisoners to 90 or 120 days, an increase from approximately
one-sixth to one-quarter or one-third of each year’s sentence. Good time would

220. See supra text accompanying notes 49–52, 58–67.
221. As noted above, it often has been the case that good-time credits were awarded automatically. If
so, the legislature or superintendent of prisons may need to revise the statutes or regulations governing
a revised good-time program to place the burden of proof on the prisoner to receive, not on the warden
to revoke it. Doing so raises no legal problem because a prisoner has no constitutional right to
good-time credits or any other form of early release. See, e.g., Swarthout v. Cooke, 131 S. Ct. 859, 862
(2011); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Meachum v. Fano,
427 U.S. 215, 224 (1976).

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still function as it always has—viz., as a reward for responsible in-prison
behavior; only the amount of credit available would differ. Of course, the more
that a revised good-time credit system comes to resemble parole, despite the
substantial differences between the retrospective good-time credit analysis and
the prospective parole release decision, the more likely the public would see the
new system as “parole lite.” If so, politicians may well abandon this revised
good-time system in order to choke off potential criticism from the electorate. A
revised good-time system, therefore, would need to operate as it traditionally
has, as a reward for past good behavior rather than as a new mechanism for
deciding when a prisoner can safely re-enter the community.
The Department of Justice supports two proposals to revise the good-time
system.222 One proposal would increase from 47 to 54 the baseline number of
good-time days that any prisoner could earn for good in-prison behavior. The
other proposal would allow a prisoner who successfully completes a recidivismreduction program to receive up to an additional days off his sentence. Each
proposal would trade on the broad societal acceptance of a good-time system
and therefore would be politically sellable.
Those proposals appear reasonable at first blush, but they do present three
questions or risks. First, they may be perceived as a backhand way of reintroducing parole. Second, they require legislators and the public to accept the propositions that successful in-prison rehabilitation programs do exist, will be adequately
funded, will be widely available, and can work in a goodly number of cases.
Third, they appear to offer a prisoner multiple independent opportunities to
receive good-time credit in order to simply maximize the credit that he can
receive.223
The Justice Department’s proposal appears to try to deflect the first criticism
by capping the total amount of good time available at no more than one-third of
a prisoner’s sentence. That may be a reasonable response if the limit applies to
every opportunity for good-time credit. As for the second criticism, the Justice
Department claims that some programs have a proven track record.224 Their
availability, however, is contingent on funding, which, in turn, will likely be
forthcoming only if these programs can be proved successful on a large-scale
basis. That prospect remains to be seen. Finally, creating multiple programs for
the award of good-time credit bears a family resemblance to Congress’s tendency to pass multiple criminal statutes covering the same conduct and is

222. See Lanny Breuer, Assistant Attorney General, Remarks at the National District Attorneys
Association Summer Conference (July 23, 2012), available at http://www.justice.gov/criminal/pr/
speeches/2012/crm-speech-120723.html (summarizing the proposals); H.R. REP. NO. 112-169, at 58
(2011), http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt169/pdf/CRPT-112hrpt169.pdf.
223. In the last Congress, the Senate considered but did not pass a bill to reauthorize the Second
Chance Act that would have amended the federal good time statute, 18 U.S.C. § 3161 (2012), to
achieve those results. See The Second Chance Reauthorization Act of 2011, S. 1231, § 4, 112th Cong.
(2011).
224. See Breuer, supra note 222.

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subject to the same criticism: namely, it multiplies and distorts the societal
judgment regarding the appropriate sanction for the seriousness of an offender’s
conduct. Finally, the Department’s proposal would be helped by empirical proof
that there is a sound penological justification for the increase from the current
one-sixth maximum to the proposed one-third maximum and that this benefit
will not lead to an increase in the crime rate.
A final issue is the need to ensure that the good-time laws are properly
drafted. Legislators may need to tinker with the good-time system to ensure that
a prisoner receives credit only when he proves an entitlement to it. The
good-time system generally has operated by presuming that a prisoner should
receive credit for a year’s conduct, rather than requiring him to prove that he
has earned it.225 The terms of relevant correctional statutes, regulations, or
policies may create such a presumption as a matter of law and require the
warden to prove that a prisoner is not entitled to credit (or that he can revoke the
credit).226 That approach is inconsistent with the best argument for expanding
good-time credit: namely, a prisoner must earn any time off his sentence. But if
legislators and correctional officials buy the argument that good-time laws work
better than clemency or parole laws at adjusting the length of a prisoner’s term,
it is easy to change the rules to fit that theory. Endorsing the principle might be
difficult, but implementing it is a piece of cake.
CONCLUSION
Unintended consequences pose unanticipated challenges. Some day we will
need to ask whether we have arrived at a point where an overly punitive
approach to corrections is hurting as many innocent parties as helping, and
whether we are generating more criminals than we are locking up. We may
decide that we have gone full circle and have returned to the place where we
started. If so, we will have the chance to decide whether we are engaged in a
war of attrition that we cannot win at a price that we are willing to pay and, if
so, to rethink our correctional system.
In the alternative, we may decide as a society that we are willing to bear
increased correctional costs as the price for enforcing the law. We may conclude
that, whether we resort to incapacitative or retributive rationales, the current rate
of imprisonment is not only defensible but also desirable for a host of reasons. It
creates an environment that objectively is, or subjectively feels, safer than what
we witnessed in past eras. We value more highly than did our predecessors the
lives not lost, the property not damaged, and the communal well being not
jeopardized by vandals running free. We believe that society has a duty to
enforce the law in order to express its condemnation of certain illegal conduct,
regardless of the cost. We are unwilling to decrease to a filament the range of
225. See, e.g., GOLDFARB & SINGER, supra note 6, at 262.
226. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221–24 (2005); Sandin v. Conner, 515 U.S. 472
(1995).

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crimes that demand imprisonment. And we are unwilling to force upon the
innocent the risk of errors that we may make in drawing the line between crimes
that warrant confinement and offenses that can be disposed of via some other
punishment.
Whatever we decide, the public is entitled to an honest assessment of the
correctional system as it is working today. If we decide not to alter it, at least we
have made the responsible choice to tighten our belts or increase our revenues
in order to pay for the amount of imprisonment that the criminal law demands.
But if we find change necessary or desirable, we should ask ourselves whether a
revised good-time program better accommodates competing societal interests
than what we are doing now.

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