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>> 159 7 Dismantling the Punishment Imperative In our opening chapter, we argued that the Punishment Imperative, dominant for more than a generation, has now run its course. If we are right, then we are still in the very earliest days of this change. Yet if we are right, it will be because an uncoordinated set of forces distributed around the country has reached an unofficial conclusion that the time has come to deescalate the penal system. There are certainly many people making this argument today—on the left, on the right, and in the center. For reasons that often differ, today’s debates have much less to do with how to get tougher and much more to do with how to stop throwing money at the penal system. The brief look at reform around the country that we provided at the beginning of this book offers an impressive list of states that are enacting policies intended to reduce the size of their prison populations. From this we can draw two conclusions. The first conclusion is obvious : the tide has turned, and the energy for penal reform is on the side of something new; the Punishment Imperative is no longer the driving 160 > 161 based on the idea that “rehabilitation programs” will reduce recidivism rates. Advocates of this approach argue that research has demonstrated that rehabilitation programs can reduce recidivism rates by 20 percent or more. They say that the secret to controlling prison costs is to invest in treatment programs in prison and during reentry from prison, which will in turn lead to reduction in the number of people released from prison who return to it. This is an appealing idea, for it enables its proponents to propose to reduce prison populations without proposing either to let some people out of prison or to divert others from incarceration. The reduction in prison intake coming from greater rehabilitation will lead to a reduction in prison costs as success rates rise. But it is exceedingly unlikely that this strategy will have much impact on prison costs, for two reasons. Others have commented on the limits of rehabilitation programs for reducing the prison system,3 and here we summarize their observations. First of all, the research literature in support of rehabilitation programs includes a very strong theme that many programs do not work.4 Those programs that do succeed—those that follow certain criteria for “what works”5 —can be expected to attain recidivism reduction rates of upwards of 20–30 percent. But this result comes about for a relatively small subset of all people who go through the corrections system: those who are high risk and have a “criminogenic need,” that is, a need that can be changed through a treatment program; and those for whom a treatment program is available. A large number of people do not fit either category. Joan Petersilia, for example, has estimated that although 40 percent of people in the California prison system have a need that could be addressed through treatment, only about 10 percent actually receive the treatment they need.6 Faye Taxman and her colleagues have similarly estimated that only about 11 percent of the people under correctional authority get the program services they need, and only about 8 percent are in such a program at any given time.7 In other words, under current programmatic levels, only about 10 percent of those who need treatment can receive it. Unless there is a wholesale expansion of treatment 162 > 163 strategy to reduce mass incarceration and overcome the worst excesses of the Punishment Imperative. These three agenda items are (1) repealing mandatory penalties, (2) reducing length of stay, and (3) reducing rates of recidivism. Agenda One: Repeal Mandatory Sentences, Especially for Drugs A central engine for incarceration growth has been mandatory sentencing , especially for drug-related crime. If we are to make headway in reducing mass incarceration, mandatory sentencing must be eliminated, especially for drug crimes. Beginning in the mid-1970s and continuing through the 1980s and 1990s, mandatory sentencing provisions emerged as among the most popular of the sentencing reforms. By 2002, all fifty states and the federal government had enacted mandatory sentencing provisions for one or more offenses. These mandatory sentence provisions typically attach to violent, sexual, drug, and weapons offenses, and to habitual offending .10 Despite their popularity, there is widespread agreement around the negative consequences of mandatory sentencing. These consequences include growing prison populations,11 the transfer of discretion from judges...

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