We the People by Erwin Chemerinsky

Author:Erwin Chemerinsky
Language: eng
Format: epub
Publisher: Picador

PUNISHMENT

A final component of establishing justice is reforming punishments in the criminal justice system. To begin with, there is tremendous overincarceration in the United States. In a recent article in the Harvard Law Review, Barack Obama wrote:

In 1980, there were less than half a million inmates in U.S. state and federal prisons and jails. Today, that figure stands at an estimated 2.2 million, more than any other country on Earth. Many people who commit crimes deserve punishment, and many belong behind bars. But too many, especially nonviolent drug offenders, serve unnecessarily long sentences. With just 5 percent of the world’s population, the United States incarcerates nearly 25 percent of the world’s prisoners. We keep more people behind bars than the top thirty-five European countries combined, and our rate of incarceration dwarfs not only other western allies but also countries like Russia and Iran.63

The costs of this are enormous. Nationally, the country spends $81 billion a year to house its prisoners.64 California spends more on its prisons than it does on its schools. And the human cost is far greater and much more important.

The effects of this are felt disproportionately by people of color. Professor Michelle Alexander’s stunning book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, describes how much overincarceration especially affects racial minorities.65 She tells how the story of Jim Crow has been transformed from one of mass segregation and disenfranchisement in the post-Reconstruction era into mass incarceration in the war on drugs and mandatory minimum sentencing era. President Obama writes: “Rates of parental incarceration are two to seven times higher for African American and Hispanic children. Over the past thirty years, the share of African American adults with a past felony conviction—and who have paid their debt to society—has more than tripled, and one in four African American men outside the correctional system now has a felony record. This number is in addition to the one in twenty African American men under correctional supervision.”66

There is much that needs to be done about this, including lessening punishments for minor crimes, eliminating many mandatory minimum penalties, and sentencing reform. The problem, in part, stems from the Supreme Court’s refusal to find draconian sentences for minor crimes to be cruel and unusual punishment. In 2003, in Ewing v. California, the Court, 5–4, upheld a prison sentence of twenty-five years to life for a man who stole four golf clubs worth $1,200.67 In Lockyer v. Andrade (which I argued in the Supreme Court and lost), the Court, 5–4, upheld a sentence of fifty years to life for a man who stole $153 worth of videotapes from two Kmart stores.68 Both cases involved sentences under California’s three-strikes law. If these sentences are not cruel and unusual, it is hard to imagine the punishment that would be deemed so disproportionate to the crime as to be unconstitutional.69

Fulfilling the Preamble’s commitment to justice should mean that grossly excessive sentences—like those in Ewing and Andrade—are cruel and unusual punishment in violation of the Eighth Amendment.

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