UK Law Prof tries to bring sanity to sentencing

by Corey John Richardson 

As we close out another year, reflect upon the most horrendous incarceration rates this world has ever seen, and with them we find that we are in the midst of the worst financial crisis since the Great Depression. With states like California on the precipice of bankruptcy, is this the right time to reevaluate our sentencing of convicted felons in this country? Some respected jurists say yes.

As reported last month (see last month’s WE’RE #1 IN THE U.S. FOR INCARCERATION), Kentucky is the #1 incarcerator in the U.S., which is the #1 incarcerator in the world. What a badge of shame, though the state prosecutors hardly think so. Univ. of Kentucky Law Professor Robert Lawson has just published his study on KY’s use of its Persistent Felony Offender laws, and can only call it by one name: “draconian.” Lawson credits the misuse of PFO laws for this explosion in the state’s prison population. (see Louisville’s Courier-Journal 11/17/08, Repeat offender law crowds prisons.)

Ironically, 34 years ago, it was Lawson who helped create the original habitual offender laws which now he feels have caused the most damage in their mis-application. He states that the laws were supposed to target select repeat violent offenders only, and not those “who are more a public nuisance than a threat.” He cites several examples in his new Kentucky Law Journal study, such as a man with a long history of drug abuse sentenced to 20 years of prison time for a single gram of cocaine.

Even victim advocacy groups, such as Kentuckians’ Voice for Crime Victims, have begun to advocate restricting habitual offender laws to only violent and truly serious offenses, but politicians still fear being seen as “soft on crime.” (There seems to be no fear of being seen as fiscally—irresponsible or “soft on education.”) KY prosecutors, in particular, rally around the current “draconian” habitual offender laws’ usefulness to secure quick and easy convictions in all sorts of cases — fearing long prison terms for lesser crimes, defendants take any plea offered and these constitute the “lion’s share” of the burgeoning prison population. Recently, on a local TV interview with one such prosecutor, when asked where we were going to put all of these prisoners, the silence was deafening. Prosecutors are rather vocal about increasing incarceration rates, but are little concerned (or truly baffled) by the fiscal realities which we are facing, particularly in ‘09.

States all over the country are in the same situation and look to the same old solutions: deeper cuts in education and other services, increased taxes on cigarettes and liquor. It’s a tragic comedy. Firstly, because the books won’t balance anymore. Secondly, because the U.S. is already suffering from an epidemic of under-education, which directly affects who comes to prison in the first place. The vicious cycle: take from education to build more prisons, less education means more illegal activity, thus we need more prisons, so we take more from education...

Honestly, there must be a limit. We may not be able to sway them with moral imperatives that would prevent a man from doing a 20 year prison term for a gram of cocaine, but certainly we all understand Money. And there is simply no money left. For instead of pleas for equity and proportionality in our justice system, we must focus on cases like the following: a man stole $300 (check fraud) and his 5 year sentence was enhanced to 20 due to being a persistent felon - it costs $20,000/year to house him, we now have lost any tax revenue that he could have contributed with gainful employment, his family usually becomes another burden on the state, his chances of ever earning a living wage have become diminished, etc., etc. You do the math, Senator. And we know that many of these crimes barely deserve misdemeanor status.

I don’t know when this mania to incarcerate will abate, if ever. Of course, I do believe fervently that America, The Land of The Free, is digging her own grave with the prisonization of this country. I do thank Prof. Lawson and those like him are trying to give sanity in sentencing a voice.

Back

Home/Cover/Table of Contents