Robert Weisberg

The dangers of Pyrrhic victories against mass incarceration

its careful scrutiny. It is a dramatic term, spurring political and academic demands that the United States take account of, and seek to reverse, its decades-long commitment to increased imprisonment. The term is justi1⁄2ably dramatic in two senses. First, the American use of incarceration is, comparatively, an international anomaly and embarrassment. Second, the magnitude of the secondary effects of incarceration in the United States has been so great as to constitute a structural change in our social, economic, and familial life. But “mass incarceration” is also a melodramatic term, implying some things about American criminal justice that are not entirely true or are flatly untrue. To some, the term may signify conspiratorial governmental control, with fascistic or Stalinist implications. While incarceration in the United States has indeed inflicted horrendous and disproportionate effects on the poor and on minority groups, these harms stem far more from an accumulation of misguided policies –and from negligence or reckless indifference toward these harms–than from any monolithic state strategy of political control. To others, the word mass conveys the sense of an epidemic, with the implication that it is a self-generating or self-reinforcing phenomenon that may run beyond our control. But as discussed below, recent events suggest that the incarceration rate is far more subject to control by very undramatic and mundane changes in policy than the imagery may suggest. Finally, mass suggests numbers that cannot bear any meaningful relationship to the legitimate goals of the criminal justice system. However, no particular measured incarceration rate is inherently unjusti1⁄2ed. The question is whether some proportion of our incarceration is unnecessary or is not cost-bene1⁄2cial. It surely is, but the degree of excess of disproportion is a complex matter to unravel, requiring us to consider the current social and economic context of criminal justice as it has evolved in recent decades, with a healthy respect for the force of pathdependence. Unfortunately, “unnecessary incarceration” or “inef1⁄2cient incarceration” is not much of a motivating phrase for reform movements. The evocative power of the term “mass incarceration” is both a virtue and a vice. In this essay, we deliberatively tilt slightly toward the vice side because we fear the unintended consequences of the vir-

The Not-so-Golden State of Sentencing and Corrections: California's Lessons for the Nation

California has become the unfortunate poster child of dysfunctionality in American criminal justice, with most of its prison system under federal court control. From 2006–2008, the Stanford Criminal Justice Center undertook an innovative series of Executive Sessions to help diagnose Californias problems and proffer solutions. Participants included a range of high-level state officials, judges, policymakers, and agency heads, as well as academic experts, and this article synthesizes the consensus observations of this group. The main symptom of Californias problems is the endless recycling of offenders through parole revocations back into and out of prison, but the sources of the problem lie in a poorly coordinated political economy of incarceration. The system is plagued by regulatory mismatches, failure to collect needed data on offenders and transmit it efficiently within the system, and irrational externalities and disincentives that thwart the goal of sound cost-benefit analysis. However unusual, California offers useful lessons for the whole nation, especially the value of seeing the relationship between the macro governmental structure and the micro level of daily administrative practice. The key lesson is that retooling the system from the ground level up can help instill some faith in and momentum for reform.

Review essay / victims’ rights in criminal trials

George P. Fletcher, With Justice for Some: Victims’ Rights in Criminal Trials Reading, MA: Addison‐Wesley Publishing Co., 1995, xi + 304 pp.