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July 01, 2011

Introduction: Perspectives on a Premise

by Penny Wakefield

Accountability” is the current watchword in this country. For many, however, “accountability” means “punishment,” and “punishment” means  “jail” or “prison.” With so many high-profile offenses in the news recently, public outrage is driving demands that someone be held responsible—and made to pay dearly—for acts and decisions that have caused great personal harm to many individuals: the financial debacle, the housing bubble and collapse, the wars.

Other types of crimes—child sexual abuse, negligent medical care—are intensely personal and ostensibly affect fewer people, but so deeply offend the collective moral conscience that some conclude that current sanctions, whatever they are, may not be enough.

The apparent desire for punishment has spilled into other areas—users of medical mari- juana, immigrants and their U.S.-born children—where the perceived harm to others may be more anticipated than real.

This current demand for more, or more severe, punishment is not new in our society, but it has exacerbated already pervasive political rhetoric about being “tough on crime.” Historically, such rhetoric has led to more laws criminalizing more offenses. If those laws don’t reduce crime, more laws follow. As for the goal, the results are mixed; the United States has one of the highest crime rates in the Western world.

This country also has long led the Western world in incarceration rates. The current “lock´em up” mentality among the public and its lawmakers began with mandatory sentences for drug use and sales in the 1980’s “war on drugs,” which perhaps inevitably led to more mandatory minimum sentences for a range of other offenses as well. Nationwide, record numbers and percentages of offenders (disproportionately young males and minorities, with females catching up) now reside long term, perhaps for life, in local jails or state or federal prisons.

Jails and prisons literally cannot hold the numbers sentenced to incarceration, and the cost of keeping so many behind bars is breaking state and federal budgets. There are other costs as well: hampering judicial decision making in individual cases, disrupting families and support systems, ending rehabilitation initiatives, undermining alternatives to prison, and the most tragic cost of all—wrongful incarceration in the first instance.

This issue of Human Rights explores punishment issues with significant implications for law, legal processes, and individual rights: sentencing guidelines’ perhaps surprising role in enhancing sentences and reducing discretion in both white-collar and other criminal cases; collateral consequences for both juveniles and adults attempting to move on with their lives after incarceration; unintended consequences of efforts to address needs of special populations in jails and prisons; political and financial factors, including private-sector prisons, driving incarceration rates; and alternatives to incarceration. Human  Rights Hero Bryan Stevenson reflects the best of defenders’ work in trying to address punishment abuses, from inhumane conditions to wrongful incarceration.

The debate whether/when punishment becomes retribution becomes vengeance is left for another time.  It is worth considering, however, whether a justice system so dependent upon punishment can be reconciled with our concurrent deeply held beliefs in the rule of law and international human rights norms.


Penny Wakefield

Penny Wakefield, who works on legislative and public policy matters affecting women’s rights and international human rights, chairs the Individual Rights and Responsibilities Section’s International Human Rights Committee and serves on the Leadership Conference’s CEDAW Task Force.