ABSTRACT
The last three decades of the 20th century was a time of dramatic shifts in the processing of offenders in the American criminal justice system. These decades have been branded as a period of “get tough on crime” characterized by more aggressive prosecution and more punitive sentencing practices that resulted in a tremendous growth in the nation’s prison population. Judges and judicial discretion were a key focus of the get tough on crime movement with all states, as well as the federal Congress passing mandatory sentencing legislation to ensure judges severely sentenced certain legislatively targeted offenders such as violent and drug offenders. However, there have been a few signs that the crime control models of the last third of the 20th century might be giving way to a less punitive model with prison populations dropping consistently since 2009. Some states, such as New York, have backed away from mandatory minimums and there has been growing support for specialty courts and community correction alternatives. We argue that these changes seem to reflect a trend towards reintroducing discretion to the court and directing the judge to consider such things as the offender’s role in the crime and potential for rehabilitation. However, for these shifts to reflect the first steps in a movement that will take us back to incarceration rates similar to those in the 1970s it must gather considerable momentum. It is unclear if such momentum is possible in the current political climate. In this chapter we will explore the history of US sentencing policies, the factors that led to the get tough movement, and more importantly the recent indicators of a change in direction. This review will set the stage for us to examine whether the lessons of history suggest we are on a positive trend towards more rational sentencing and treatment of offenders or whether we are perhaps only experiencing a calm in the middle of a storm.
