Document Type

Working Paper

Publication Date

7-26-2011

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Criminal Law & Procedure eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Political Science Network

Abstract

Recent scholarship about the role of sentencing reform in reducing high levels of incarceration has focused on evidencebased offenderspecific solutions such as how to better assess offenders' risk of recidivism and their amenability to diversionary programs This Article proposes a new systemic approach In particular it suggests that in cases where the primary rationale for steep sentences is crime reduction as opposed to retributive notions of harm and blameworthiness judges ought to engage in an evidencebased examination of how the government is making "use" of the sentences it seeks in its law enforcement efforts And where the government's efforts fall short so too should the sentences The proposal would not only result in more rational and just sentences it also has the potential to enhance public safetyAlthough law enforcement and prosecutorial strategy have conventionally been viewed as the exclusive territory of the Executive Branch this Article contends that judges are in fact appropriate and competent institutional actors to examine them This Article explores these issues in the context of the federal government's most formal and direct intervention into the prosecution of street crime Projects "Triggerlock" and "Safe Neighborhoods" which in the name of crime control have resulted in a tenfold increase in the number of federal "feloninpossession" prisoners over the past twenty years

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