Molly Martens

Criminal justice is as old as civil society itself.  The world’s oldest records indicate that even before 2050 BC, kings were establishing some form of justice, usually in written form, and enforcing it upon their subjects. The Code of Hammurabi, dated back to 1760 BC, is one of the oldest and best-preserved pieces of law.  Its 282 brief laws pertain mostly to when it is appropriate to put a person to death, slave owners’ rights and property in general.14 Nowadays, we don’t own slaves and the crimes that merit execution are extremely horrific and rare.  We can’t put a person to death for falsely accusing someone of a crime or test a person’s innocence by their ability to sink or float in a river, yet however silly and ridiculous the Code of Hammurabi may seem compared to our modern code of law, it worked for and reflects their society at the time, just as ours should.

It is no question that our code of law has changed and progressed tremendously since ancient times, but one may still wonder if our current criminal justice is appropriate for our society and whether it works for us and reflects our national beliefs.  Unfortunately, the U.S. criminal justice system is failing at adequately managing the staggering prisoner population and their facilities.  Currently the U.S. prison population is over 2.1 million, which is 5-8 times as much as the prison population of any other country in the world.1 This number has increased six-fold in the past 20-30 years, and will continue to rise unless new laws are passed to better deal with this prisoner population influx and the overcrowding that has resulted.


The prisoner population has increased for a number of reasons, none relating to an increase in crime.  In the late 1980s and 1990s a series of laws were passed that became known as the “get tough” movement in the U.S. criminal justice system.  Laws pertaining to truth-in-sentencing, longer mandatory minimum sentences, harsher drug crime sentences, three-strikes-your-out policy, restrictions on parole, and an increase of juveniles waived to criminal courts have all contributed to the phenomenon known as ‘mass incarceration.’  According to Marlene Martin, a sociologist, our country makes up 5 percent of the world’s population, but accounts for 25 percent of the world’s prisoners, and more than 40 percent of these prisoners are serving life sentences for a crime other than murder.2 Our extreme policies are causing problems that states are ill-equipped to solve, and which citizens are unwilling to spend their tax dollars on.

In the 1970s, judges determined the offender’s sentence but parole boards had the power to release an inmate based upon his/her crime, good behavior in prison and proof of their genuine desire to rejoin society in a policy called indeterminate sentencing. Each offender’s case was reviewed individually by the board, and the board’s decision varied depending on the specifics of each case. Even though this policy was a way of checking and balancing governmental powers, indeterminate sentencing became obsolete over the course of a decade, due to many societal and cultural factors at the time. Conservatives fought against the liberalists who had defined America’s culture and lifestyle of the 60s and 70s, calling for harsher punishments and more defined policy. The struggle over civil rights continued, and many activists focused on female vulnerability and victim’s rights. Crime-fighting television shows like “Miami Vice,” “A-Team,” and “Knight Rider” became increasingly popular, which probably scared many Americans into thinking that these action-packed storylines reflected what was actually going on in the streets of New York, Miami and Los Angeles.2.5  Many politicians found that jumping on the “tough on crime” bandwagon was a one-way ticket to a successful election, and Ronald Reagan and George H.W. Bush became the poster children of the “tough on crime” movement.



The public reflected these societal factors and pushed for longer sentences and uniform punishment.  Politicians delivered their promises without considering what consequences their decisions may have twenty years down the road.  Determinate sentencing, a policy in which a fixed sentence is pegged to a specific crime was put into play, but it still did not satisfy the public as sentences could still be reduced through good time, which rewards for good behavior, or earned-time, which rewards for participation in vocational programs and classes offered in prison.  Then came the mandatory minimum sentences, which must be served following a sentencing guide-line range specific to the type of crime committed.  The public pushed for longer minimum sentences, so some states adopted a policy called “truth-in-sentencing” laws, which assigned longer sentences to violent offenders, but gave opportunity for early parole once a percentage of their sentence was served, without credit for good-time or earned-time. This was first introduced in 1984 to ensure the public that violent offenders would serve a large portion of their already elongated sentence.


The 1994 Violent Crime Control and Law Enforcement Act included a section titled the Federal Truth-In-Sentencing Incentive Grant Program which motivated many states to pass truth-in-sentencing laws that required each violent offender to serve at least 85 percent of their sentence in return for a large grant for renovating or building new prisons.  Since 1998, 27 states and the District of Columbia have passed the 85 percent truth-in-sentencing laws and now share in the annual 1.3 billion dollars the government rewards them with. Thirteen states require 50-85 percent to be served before the possibility of parole. At the end of 1998, 14 states abolished parole board release for all offenders, and 6 abolished it for violent or felony offenders.3

Truth-in-sentencing laws and “three-strikes-you’re-out laws,” also known as habitual offender laws, both maximize the amount of time an offender will serve in prison.  Habitual offender laws are “get tough” laws that were passed in the 1990s that target offenders who have been convicted of a serious offense three or more times.  On the third conviction, or “strike,” the offender will typically be sentenced to life with no chance of parole before 25 years.  Since most of these offenders are older and have already served time in prison on two other occasions, the offender probably won’t live long enough to be paroled.  When the law was introduced in 1993, Californian voters approved of it by a large majority of 72 percent. Now, 26 states have “three strikes” laws, but the seriousness of the crimes to which they apply the “three strikes” vary from state to state.  In some states, such as California, stealing over $500 worth of merchandise, robbery, or drug possession/distribution could result in a life sentence under this law.4

 Truth-in-sentencing and “three strikes” laws transfer the power of parole from the parole board to the judge, which is an unequal balance of power.  As a result of the strict laws, prisons everywhere are experiencing overpopulation, costing the taxpayers much more money than they expected.  In Wisconsin, a state which has one of the harshest truth-in-sentencing laws (100 percent time served), the taxpayers are to pay 1.8 billion dollars through 2025 to maintain their prison populations.5 Grants from the federal government hardly make a dent in this amount, and those taxpayers who once complained of soft criminal laws are now complaining about the cost of keeping all of these offenders in prison for their full sentence. One inmate named Carol Lewis in Illinois wrote in an essay that “maybe we raped, killed, engaged in armed robbery, embezzled, whatever the crime, you give us no chance to pay back, no chance to prove we’re sorry” and notes that “if 90 percent of [lifers] stay out and gain employment and pay taxes, the state could see a drastic change in the deficit we are creating not sitting dormant, costing millions.”6

arrest_rates_for_marijuana_in_nycAnother contributing factor to mass incarceration is a change towards harsher punishments for drug-related crimes, which started taking effect in the 80s through the “war on drugs” campaigns headed by Reagan and Bush. Between 1980 and 1990, drug possession arrests rose 88 percent. About half of the present prison population is incarcerated for nonviolent drug or property crimes, which means that about 30 billion dollars of taxpayers’ dollars per year are being used to keep non-violent offenders in their prison cells.

The push for drug reform is highly fueled by racial issues, as a much higher percentage of African Americans are incarcerated for possession or intent to sell than any other ethnicity, but another side of drug reform deals with reducing sentences for certain drug crimes.  Many states, such as New Jersey, are pushing for softer laws for non-violent drug offenses and Minnesota’s commission proposes to cut drug sentences in half.8 “The prison term for a first-degree drug conviction – possession of 1 ounce of cocaine or meth – is seven years. That’s also what one would serve for criminal vehicular homicide,” said state public defender John Stuart, who supports the law change. “You are talking about a dead person versus someone holding a bag of white power, and not a very big bag.”

In December of 2007, the Supreme Court amended the “100-1 Disparity Law” which was passed in the 1980s under the Anti-Drug Abuse Act of 1986 and 1988 and gave a harsher sentence to crack offenders than cocaine offenders.  According to the law, possessing 5 grams of crack resulted in a minimum of five years in prison, the equivalent of trafficking 500 grams of cocaine powder.  The law not only had been criticized for its racial implications, but also for its unjust punishment for such unequal crimes.  As a result of the Court’s decision, more than 20,000 crack offenders experienced sentence readjustment and many were released. 9 Fortunately, drug law reform is a facet of the criminal justice system that is changing.  Unfortunately, a large reason why it is such a concern right now is not because of injustice, racism or irrationality, but because it is one of the easiest ways to alleviate overcrowding and struggling states.

Juveniles are the last main reason why the prison population continues to rise.  Although they don’t make up a huge percentage of the prison population, juvenile cases waivered to adult courts are increasing in number and are yet another group who potentially don’t need to be added to the already staggering prison population.  Legislation has come a long way from the Juvenile Justice and Delinquency Prevention Act of 1974, which focused on preventing juvenile delinquency, creating more programs for those in the system, and ensuring separateness of juvenile and adult offenders.  Domestic and International courts alike held the belief that children are entitled to special care and protection because they are still developing mentally and emotionally.  US courts also kept juveniles separate so that they couldn’t be influenced by adult criminals.  A rise in the crime rate in the late 80s through the mid 90s sparked an amendment to the Act of 1974 to allow juvenile crimes involving violence and weapons violations to be tried in adult courts, which more than forty states now practice.

Even though rehabilitation centers and programs cost less than imprisonment, and even though the juvenile crime rate has dropped lower and lower each year (not because of deterrence, studies show), states are still opting for adult trials.10 States continue to send an increased amount of juvenile cases to criminal court, adding more than 210,000 bodies each year to the already overcrowded prisons, ruining many children’s future education and career opportunities as well as taking away their right to vote. Approximately 2,000 of these juveniles are thirteen years old, some with a sentence of life without parole.11

Many of the criminal laws passed in the past 30 years have greatly contributed to the vast prison overpopulation crisis that threatens U.S. citizens, state budgets, chino-crowdingand federal economy.  By increasing the number of inmates as well as their sentences, these laws have not only significantly increased the cost of maintaining prisons and their populations, they have triggered a whole new set of problems, such as expensive elderly care, that strain budgets even further.  According to an MSNBC report, each week an inmate died of neglect or malpractice in a California prison in 2006 until a judge became involved.12  Obviously, if we cannot keep inmates alive, then there is a serious need for change in the prison system.

In the 80’s and 90’s, criminal law changed to reflect the majority of Americans’ concerns over maintaining a safe society, but now those concerns have shifted towards alternate methods of carrying out criminal justice, especially due to the great economic strain that overcrowding causes.  According to a 2004 Gallup poll, only 29 percent of Americans agree that lowering the crime rate in the U.S. can be achieved by building more prisons, and employing more police and judges.  On the other hand, 69 percent of Americans would rather use the money to address the root causes of crime through organizations that improve education and job training.  More rehabilitative programs need to be implemented both inside and outside the prison system in order to alleviate overcrowding.  More homes and programs for juveniles, drug offenders, and perhaps even multiple offenders should be established.  Parole boards should have more control over releasing inmates, and so more academic, vocational and rehabilitative programs should be offered to inmates to prove their willingness to work and cooperate with society.  Harsher laws have only made it harder for criminals of all ages to escape the prison system, and have in return made it harder to manage offenders properly. It’s ironic, but laws have caused the problem, and laws are the answer to it as well.  


1,7 The Sentencing Project. “Incarceration.” < >

2 Martin, Marlene. “Living in hell for life.” Counterpunch Newsletter. Aug 2 2008.

2.5 Caconi, Chris. Classic TV Database. 2008. <;

3 Ditton, Paula. “Truth in Sentencing in State Prisons.” U.S. Department of Justice. Jan 1999.  (used for ALL truth-in-sentencing information).

5 Zahn, Mary. “Tougher sentencing laws carries a hefty price.” JS Online. Nov 2004

6 Warren, Carol. “The Cost of Justice or Vengeance (when does it cross the line)”. (handout from class).

8 Prather, Shannon. “Minnesota Drug Laws: Are they too harsh?” April 2007.

9 “Testimony of Jesselyn McCurdy, ACLU Council at a US Sentencing Commission Hearing on Cocaine and Sentencing Policy”. American Civil Liberties Union.

10,11 Peterson, Julie. “A Blueprint for Juvenile Justice Reform.” Youth Transition Funders Group. Spring 2005. <;.

12 “Aging inmates clog nation’s prisons.” The Associated Press. Sept 2007.

13 Syaad, Lydia. Gallup. 24 Feb 2004. <;

14 Wikipedia. <>


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