American state prison systems face a problem equivalent to our once great manufacturing corporations with their unsustainable pension and health care promises to their workers and retirees. In the case of our prison systems, the promises take the form of long and inflexible prison sentences that commit the states to funding the housing and health care of unprecedented numbers of prisoners for decades to come. The costs of these promises, combined in many cases with the failure to provide capacity for healthcare delivery to predictably unhealthy populations, is now confronting the states, sometimes with the prodding of the federal courts, with the need to allocate an ever greater share of revenues to their correctional budgets. In some states the share spent on prisons now exceeds that spent on higher education. At a time of catastrophic revenue shortfalls because of the economic crisis, these costs are forcing many states for the first time in decades to consider ways to reduce prison populations.
While this represents a sea change from nearly forty years of political consensus in support of increasing prison capacity and populations, the question of how to do it in a politically viable way now confronts state leaders with a great conundrum. Unlike the manufacturing corporations that could use the bankruptcy process (or the threat thereof) to wring concessions from workers and retirees and thereby arrive at a sustainable level of liability, states seeking to reduce their incarceration commitments face the politically hazardous task of changing sentencing or parole laws after decades of telling voters that more prison time was necessary for public safety.
Cecilia Klingele’s article is one of the first law review articles I have encountered to directly address this new conundrum rather than treating sentencing policy from a universal and nonhistorical perspective. Klingele has absorbed the lessons of the politics of penal populism and is seeking to develop legal strategies for dealing with it. This article offers an incisive and convincing critique of the currently preferred path being taken by the states and offers a provocative and promising alternative.
The preferred path forward in most states is to find ways to reduce the prison population through the back-end, i.e., by various adjustments to parole release and revocation policies that increase the number of prisoners being released before the end of their sentences and reduce the numbers being returned for parole violations. This approach has appeal to most politicians because it avoids or at least delays having to engage the public in an explicit discussion of who needs to be in prison and for how long that changes in front-end sentencing policy would require upfront.
Klingele argues that current strategies are likely to be insufficient and risk creating conditions for deeper levels of the kind of public fear and mistrust that led to mass incarceration in the first place. She points out that back-end release policies place decision making power over the length of prison sentences in the hands of correctional agencies or other administrative bodies accountable to the governor. The public sense that administrative sentencing lacked fairness and sufficient concern for community safety is part of what led to the great wave of enhanced and inflexible sentencing rules beginning in the 1970s and 1980s. Because politicians have not engaged the public in reassessing the need for so much imprisonment and are promoting these sentencing reductions in the face of massive budgetary crises, the public may believe that community safety is being undercut and thus the potential for backlash is very real.
Criminologists have recently begun to debate whether the answer to mass incarceration is to find a way to depoliticize sentencing or instead to try and create a new politics of punishment that is less committed to imprisonment. In their important book, Punishment and Democracy: Three-Strikes and You are Out in California (2001), Frank Zimring, Gordon Hawkins and Sam Kamin made the provocative suggestion that punitive and inflexible sentencing laws like California’s 3-Strikes law, demonstrated the need to remove political control from prison sentences, much as monetary policy is insulated from political control through institutions like the Federal Reserve. More recently, UK criminologists Ian Loader and Richard Sparks in their book, Public Criminology? (2010), have argued that insulating penal policies from democratic politics is an unacceptable loss to democratic legitimacy and that criminologists convinced of the perniciousness of our current prison policies need to engage the public in producing a new less harsh politics of crime control.
Klingele’s article offers an intriguing alternative to cut through the dilemma of democracy and punishment. Judicial sentence modification, is a traditional if traditionally little used mechanism that is insulated from direct politics but transparent and more likely to convince the public that community safety is not being sacrificed to administrative demands for budget cutting. This approach allows the same court (although not necessarily the same judge) that originally sentenced a convicted offender to prison to revisit and potentially modify the sentence. While the practice has deep historical roots, it is not used by many states and has been used very narrowly in those states that permit it. Originally this was recognized as an inherent common law power of courts over their own sentence, but tightly restricted in the amount of time that can be allowed to expire (usually the sentence has to be altered in the same judicial term). Some states have broadened the time frame through common law elaboration to allow motions to modify the sentence even years later in a form of “bench parole.” Other states and the federal government provided statutory authorization for judicial sentence modification, but generally only within a relatively short time and generally only based on “new evidence” that does not include the institutional behavior of the prisoner. In at least one state however, Maryland, a recent statute has expanded the time for filing to five years after the original sentence and further allows the court to consider not just the original record, but new information including the prisoner’s record of compliance.
Klingele argues that more states should follow the Maryland example and expand judicial sentence modification into a broader and more generalized option. On her account sentence modification offers a number of advantages over administrative back-end mechanisms. Judicial modification would take place in open court, with notice to and participation not only by the prosecution and the victims (who are generally notified of parole hearings), but to some extent the general public as well. Moreover, trial courts are part of the community whose safety is at stake in release decisions. They are not subject to control by the executive branch and are institutionally oriented toward individual justice rather than budgetary considerations. But while they improve upon administrative authorities in terms of transparency and the consideration of individual factors and local concerns, they are institutionally designed to be deliberative and focused on justice not responsive to populist demands for punitiveness.
There are good reasons to be skeptical that this approach will be sufficient by itself. In many states judges are elected and may well feel politically exposed by having to reconsider sentences. Sentence modification on a case-by-case basis is likely to be a slow and incremental way to reduce prison populations. Moreover, it leaves intact the front-end sentencing laws and their embedded assumptions about the need for so many people to go to prison in the first place. However Klingele deserves great credit for engaging in the practical question of how American states can break out of their currently inflexible commitment to mass incarceration without alienating the public. Her approach is worthy of serious study by state policy makers. While it may leave the bulk of the problem of over incarceration for front-end sentencing reform, the very practice of judicial modification, once started, may help create the kinds of narratives about prisoners and public safety that will in turn help produce the new politics of punishment we need for really substantial change.