Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities
by DOUGLAS A. BERMAN
Progressives have long played a leading role in reforming punishment practices and sentencing norms in the United States. In the nineteenth century, progressives pioneered a move away from brutal physical punishments toward the development of penitentiaries focused on the spiritual rehabilitation of lawbreakers.1 In the twentieth century, progressives complained about the failure to devote sufficient resources to humane prison programming and about the tendency of rehabilitative ideals to be corrupted in practice. Over the last two centuries, progressives have also frequently expressed concerns about sentencing disparities rooted in racial, ethnic and socioeconomic discrimination.
Today, progressives continue to express concerns about punishment practices and sentencing norms. But I fear that many progressives have failed to update their reform concerns and advocacy in light of twenty-first century realities. We primarily hear progressive voices speaking out against the death penalty and lamenting wrongful convictions and racial disparities in criminal justice systems. Over the last decade, for example, the American Bar Association and other organizations have produced massive reports urging execution moratoriums and major reforms to the administration of capital punishment. The Innocence Project and other organizations have spotlighted common causes of wrongful convictions and have urged states to establish innocence commissions. Given the stunning and unprecedented expansion of modern American imprisonment rates, however, the problems and consequences of mass incarceration should become the new preeminent concern for progressives. Indeed, as explained below, the failure of progressives to adapt their criminal justice advocacy for modern times may indirectly contribute to the status of the United States as the world’s leader in imprisonment.
The recent Presidential election of Senator Barack Obama — the first major candidate in recent memory to criticize the harshness of modern American criminal justice systems while on the campaign trail6 — excites many about the possibility of the United States entering a new era for criminal justice law and policy. I fear, however, that this excitement for criminal justice change could be a curse rather than a blessing if progressives do not refine their policy aspirations and legal advocacy in light of twentyfirst century criminal justice realities.
