Beyond Budget-Cut Criminal Justice: The Future of Penal Law

American criminal justice is experiencing a perfect storm of budget-cut criminal justice reform and the awakening of courts to the role of checking penal severity.  A wave of reforms is sweeping the states as budgetary shortfalls are leading to measures once virtually impossible or very difficult to enact such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences.  On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review and reinvigorated judicial intervention in penal management. This Article argues that these shifts in the social meaning of criminal justice reform from being soft on crime to being fiscally responsible in curbing destructive spending provide political cover for reform and potential for garnering bipartisan support. At this important historical juncture, the Article explores how to transition from emergency-response to sustainable penal law and policy reform.

Recent cases such as Brown v. Pena and Graham v. Florida demonstrate the utility and wisdom of judicial nudges when penal politics are mired in incapacitation stagnation. Ultimately, however, guides and constraints governing the political branches are needed for sustainable change.  The Article analyzes the potential of what it terms “rehabilitation pragmatism” to anchor reforms. Rehabilitation pragmatism is cautious and selective in choosing beneficiaries and attentive to the need for evidence of efficacy, cost-effectiveness and success. The Article argues that as we turn to such data-driven approaches in decision-making, the distribution of benefits and burdens across historically disadvantaged groups should be an important component of efficacy assessments. Performance measures should take into account human and community as well as fiscal costs. The Article also advocates penal impact analysis to curb the tendency to enact a thicket of criminal laws without consideration of systemic costs.  Penal impact analysis provides for front-end examination of the fiscal consequences of criminal legislation, curbing the pathological politics of crime.