Blame The Notorious RBG Too For Mass Incarceration
Feb. 26, 2016 (Mimesis Law) — Ken Womble recently addressed the issue of the large state prison population:
However, these instances are primarily within the federal system, a system very much in need of reform, but a system that is only responsible for 10% of America’s world-leading prison population.
Currently, our embarrassing stats place our federal prison population at about 200,000. State prisoners on the other hand, 2 million. 200,000 human beings is far from insignificant. But allowing our focus to remain on a law that impacts 10% of our problem shows just how bad we are at democracy. We seem to love pointlessly shouting about problems almost as much as the people we keep voting for.
Dig into the inner workings of the criminal justice system and you will be exposed to a confluence of processes and procedures all geared toward sending busloads of (often minority) people off to prison cells. There are state laws that are absolutely unfair and contribute to the problem. However, there are many, many more laws that, if followed properly, would turn our system good. We just need local prosecutors and judges to follow them.
Womble touches on many issues here, such as more personalized sentencing, high bail, voter influence, and prosecutor and judicial behavior. But there is a nearly invisible cause that has contributed to the nearly 12% increase in Ohio’s prison population. It is due to the Supreme Court of the United States and Justice Ginsburg’s swing vote. And it was all done under the theory of protecting the defendant’s right to a jury trial.
In the Booker case, the Court determined that the federal sentencing guidelines were unconstitutional. The Court stated the following:
As it thus became clear that sentencing was no longer taking place in the tradition that Justice Breyer invokes, the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.
In sum, under Booker, the Sixth Amendment requires that juries—rather than judges—determine all facts that increase the sentence. This resulted in the guidelines becoming merely advisory for federal judges. Contrary to states like Ohio, the overall impact on the federal system appears to be relatively minor.
In 1996, Ohio reformed its sentencing scheme, rejecting the gird-like system that the feds used and instead opting for sentencing principles. The basic aim of the system was to hold the line on the increasing prison population and largely did so by focusing on the length of stay. The three main mechanisms used to hold the line were presumptive minimum sentences, discouraging maximum sentences, and narrowing the circumstances under which consecutive sentences could be imposed.
And it worked, holding the state’s prison system relatively stable—until Booker came along. In response to Booker, the Supreme Court of Ohio struck down the key provisions of the sentencing reform act. Five years ago, the Department of Rehabilitation estimated that due to this case law the average length of stay increased by five months. Moreover, the imposition of the maximum term also increased once the limiting principles were removed. Even these small changes have resulted in 4,000 additional inmates since the ruling.
This dramatic increase was not due to the usual suspects, such as prosecutorial charging decisions, judges “getting tough on crime,” mandatory minimums, or the legislature responding to voters’ concerns. This increase was all due to five justices on the Supreme Court, or the Sixth Amendment, depending on how hard you squint when reading it. Because this precedent is rooted in federal constitutional law, states have limited ability to react to these changes.
In response to the decision, Ohio made other changes five years ago, including expanding intervention in lieu of conviction, allowing for GPS monitoring instead of prison time, reviving the presumption on concurrent sentences, and raising the felony theft threshold. But these changes have thus far failed to achieve the same result as the original reform. So, Ohio had a system that was holding prison population stable, but it cannot return to it thanks to the Supreme Court of the United States.
So, plea offers or charging decisions by prosecutors have not contributed to Ohio’s increase. You could blame the judges for imposing more time than before, but there is no reason to think that these increases are purposeful. Over the course of a year, the change in the average sentence by five months is likely imperceptible to most judges. For example, simply imposing the next to lowest sentence would easily account for the shift upward in the average.
If the impact of Booker has been this dramatic in Ohio, then it’s possible that other states have faced increases due to judicial decree. And those states have faced the same problem of how to work around the Sixth Amendment. This means the right to a jury trial has perversely contributed to mass incarceration.
Ohio’s relatively defendant-friendly provisions were struck down. In that light, the “win” for defendants under Booker has certainly been a net negative for Ohio inmates. So, it’s not accurate or fair to blame only prosecutors, state judges, and legislators exclusively for the two million state prisoners. Blame the Supreme Court too.