Response to Institutional Litigation in the Post-Chapman World


At breakfast this morning, Norval Morris reminded me that he, not this panel, has the last word. But we have the penultimate word, and I’d like to make a comment about the entire proceedings before talking about litigation.

I think this colloquium and its focus on sentencing strategy has been fascinating but will have absolutely no impact on the prison overcrowding crisis. We have spent a lot of time talking about different sentencing strategies and their impact on crime. I think that is silly because no sentencing strategy will have an effect on crime, unless we decide to tell the police that they can lock up anyone they want based on any kind of suspicion, and then we just lock these people up for life. With that sentencing strategy we would have an impact on crime. But given the parameters of the Constitution, no sentencing strategy we could devise will have any real impact on crime. The problem is that these are essentially political and public policy issues, and the folks who make those decisions are not here. If the real goal were reducing prison population throughout the country by thirty or forty percent, and that’s probably what it should be, the talent is here to do it; Norval and I decided we could do it in eight hours. We have all the statisticians, the academics, the research people, and the lawyers. We also have all the ideas, a combination of sentencing reform, release mechanisms, alternatives—we could reduce prison population by a third. But that’s not what the public policymakers want-the legislators, the governors. They’re not here and they’re not going to listen to anything that comes out of this conference. In fact, I think they would probably be happier if they could double the prison population rather than reduce it—if they could afford the prisons and find the locales to take them.

Suggested Reading