As our country reflects on the contributions of African Americans during Black History Month, we would also do well to measure the progress of our society, structures, and institutions against one of Rev. Dr. Martin Luther King Jr.’s most prophetic exhortations: “We as a nation must undergo a radical revolution of values.” Dr. King spoke those words on April 4, 1967—exactly one year before his assassination—while addressing a crowd at New York’s Riverside Church. “We must rapidly begin … the shift from a thing-oriented society to a person-oriented society.” Today, half a century later, Dr. King’s prescient call for a “revolution of values” still rings true, and nowhere is such a revolution more necessary than within America’s criminal justice system.
The values shaping the criminal justice system are in need of a radical transformation. The punitive approach that drives current policies emerged in the 1970s and 1980s, when the primary theory of criminal justice shifted from rehabilitation to retribution and crime control. Unfortunately, I know this approach better than most, having experienced the cruelty and brutality of our criminal legal system firsthand. In 1996, I pled guilty to a first-time nonviolent drug offense and was sentenced to 10 years in prison with a mandatory minimum of 40 months in prison to be served before I was eligible for release. While at the time I was disconnected from higher education, I easily could have been reengaged in postsecondary education with the appropriate nudge. Instead, I was sent to live in a cage for 40 months. During my incarceration, my hopes and dreams for the future languished as I was denied access to higher education and other opportunities for human development. Once released, I faced the automatic suspension of my driver’s license; the permanent loss of my voting rights in my state of birth; myriad barriers to employment and education; and the ubiquitous stigma of a criminal conviction. Over the course of my career as an attorney and justice reform advocate, I have found that my situation was far from atypical in a system that embraces the values of retribution and punishment as opposed to those of proportionality, rehabilitation, and opportunity.
Today, roughly 2.2 million Americans are incarcerated in state and federal prisons and local jails—a 500 percent increase in just 40 years—and there are more than 70 million Americans living with a criminal record. The rise in incarceration rates has not affected all communities equally. Blacks and Latinos collectively represent around 30 percent of the general population, but account for nearly 60 percent of the prison population. For black men, the incarceration rate is more than six times higher than it is for white men and more than two and a half times higher than it is for Hispanic men. The cumulative consequences of mass incarceration for communities of color—many of which lose significant numbers of working-age men and women to the criminal justice system—include the creation of geographic pockets of concentrated poverty, intergenerational structural disadvantages, and burgeoning racial inequality.
Mass incarceration has significant societal costs not only in human terms but also in dollars and cents. Every year, the United States spends more than $80 billion on local jails and state and federal prisons. Correctional costs place an enormous strain on state budgets, directly impacting states’ ability to fund vital community programs and fueling a vicious cycle of community disinvestment.
A consensus has emerged across the political spectrum that mass incarceration is a failed public policy, with advocates ranging from the ACLU to the Koch brothers speaking out in favor of criminal justice reform. Absent from these important conversations, however, is a discussion about the values that should animate a new criminal justice system.
Many reformers are familiar with values such as liberty, equality, and pragmatism, but an additional value is critical to the movement to end mass incarceration: parsimony. The principle of parsimony requires that “punishments for crime, and especially lengths of prison sentences, should never be more severe than is necessary to achieve the retributive or preventive purposes for which they are imposed.” Parsimony holds that any unnecessarily harsh punishment is morally unjustifiable.
Despite the retributive focus of our criminal justice system today, the United States has some foundation in parsimonious practices. Until the final decades of the 20th century, the primary goal of the justice system was rehabilitation. Judges were empowered to tailor sentences to a defendant’s specific needs and circumstances, with a focus on promoting successful reintegration into society. U.S. law continues to offer parsimonious guidance in sentencing for federal crimes, stating that “the court shall impose a sentence sufficient, but not greater than necessary.” Courts, in determining the appropriate sentence, should review a number of different factors including the nature, circumstances, and seriousness of the offense; the “history and characteristics” of the person charged; and whether the sentence or punishment provides an opportunity for the person charged to receive needed educational or vocational training, medical care, or other treatment that addresses the root cause of an individual’s contact with the criminal justice system.
In 2016, federal Judge Frederic Block of the Eastern District of New York put the value of parsimony into practice when he sentenced Chevelle Nesbeth, a woman arrested at John F. Kennedy International Airport with 600 grams of cocaine in her luggage in 2015. Although Ms. Nesbeth attested that she had been given the suitcases by friends and was unaware of their contents, she was convicted of drug charges that carried a suggested sentence of 33 to 41 months under federal sentencing advisory guidelines. Judge Block, however, sought an appropriate punishment that was not unduly severe, eventually sentencing Ms. Nesbeth to one year of probation rather than incarceration.
Importantly, he factored the collateral consequences she would face as a convicted felon into the calculus of a proportional and parsimonious sentence. As Judge Block explained, collateral consequences include the nearly 50,000 federal and state legal penalties imposed on people convicted of felony offenses, even after they have served their court-mandated punishments. These sanctions can disqualify individuals from job or educational opportunities; render them ineligible for public benefits and unable to obtain housing; and create other unnecessary barriers to successful reentry. Judge Block said such consequences served “no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” Instead, he explained, they can result in “further disastrous consequences, such as losing child custody or going homeless,” and lead many formerly incarcerated people to “becoming recidivists and restarting the criminal cycle.” After enumerating the impact of collateral consequences on Ms. Nesbeth’s future, Judge Block concluded that the sanctions alone constituted a “punishment that is sufficient but not greater than necessary to meet the ends of sentencing.” As Ms. Nesbeth’s defense counsel argued, to compound these consequences with a period of incarceration would be “a severe and unnecessary punishment.”
Unfortunately, Judge Block’s sentencing practice is atypical among judges, many of whom have not yet embraced the value of parsimony. To end mass incarceration, our society must consider whether the state’s intrusion on an individual’s liberty is the minimum necessary intervention to achieve public safety and wellness—the intended purpose of our criminal justice system. Let us use Dr. King’s prophetic exhortation for a “revolution of values” more than 50 years ago as an opportunity to usher in this value of parsimony so that it may permeate our entire criminal justice system—from policing and prosecution to sentencing and subsequent reentry.
Daryl V. Atkinson is a nonresident senior fellow with the Center for American Progress and co-director of Forward Justice, a law, policy, and strategy center dedicated to advancing racial, social, and economic justice in the U.S. South.