Law professors debate consequences of extended prison time

The Notre Dame Law School’s Federalist Society and the Tocqueville Program for Constitutional Studies recently co-sponsored a lively debate exploring the relationship between sentencing and crime rates.

Rick Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, moderated a discussion featuring Bill Otis, Professor of Law at Georgetown University and former Special Council to President George H.W. Bush, and Jennifer Mason McAward, Associate Professor of Law at Notre Dame who specializes in human rights.

Garnett situated the discussion about sentencing reform in today’s context by noting that it is a topic of great concern for politicians on both sides of the aisle. He began by asking broad questions such as, “To what extent are we getting our money’s worth through incarceration?”, “What are the benefits [and downsides] to incarceration?”, and “If we are to change it, should we incarcerate more or less?”

In response, Otis decisively argued that more incarceration reduces crime.

“The lesson we have been learning for 50 years is that less prison means more crime and more prison means less crime,” he stated.

Otis traced the evolution in sentencing policy from the 1960s to today, noting that after the government loosened sentencing policy in the 1960s, a 25 year-long crime record followed, during which crime increased by 400% and there were an average of 450 murders a week in the U.S.

Eventually, in the 1980s, the government imposed stern, determinate sentences, a three-strikes law, and mandatory minimum penalties to hold judges accountable to a common standard. Otis claimed that the effect of this policy change was a 50% reduction in crime over a generation, with 5.4 million fewer serious crimes committed.

Otis qualified his statements, clarifying that this drastic reduction in crime was not due entirely to change in sentencing policy. Rather, research suggests that one fourth of the reduction is due to the government’s stricter stance on incarceration, while three-fourths is attributable to other factors such as the aging of people likely to commit crimes and the increase in police hires. Still, Otis argued that the stricter sentencing guidelines of the ’80s and ’90s prevented millions of crimes that incarcerated criminals did not have the chance to commit.

Moreover, according to Otis, those who advocate for reducing incarceration hold “a naïve view of the people who wind up in prison and the attitudes that put them there.” He claims that as a prosecutor, he did not see men caught up in one criminal act that was an aberration in their lives as much as he witnessed pervasive lifestyles and attitudes contributing to repeated criminal activity.

In response to Otis, Mason McAward raised the common concern of incarceration’s financial toll in her remarks, stating that incarceration costs over 80 billion dollars annually. Yet Otis believes that sentencing reform would produce a mere cost-shifting rather than a cost savings.

“Cost savings will not show up on a government ledger,” Otis noted. “Rather, negative costs will be borne by future victims, a great number of whom are minorities, in obscure silence.”

To politicians who seek to reduce prison sentences for nonviolent offenders, Otis replied that at our present level of knowledge, we are not adept enough at knowing which criminals will or will not be violent in the future.

Otis argued that the violent nonviolent distinction leads us into a “moral swamp,” as it presupposes the core belief that offenses not involving violence are not as serious as those involving violence. Using the example of the elderly couple swindled out of their life savings, Otis posited that the question is not merely whether the offense is violent, but rather if it involves harm.

Mason McAward also proffered some staggering statistics during her remarks, namely that 1/100 American adults are incarcerated, that 1/28 children have a parent that is incarcerated, and that 1/9 African American children have a parent in jail.

More hesitant than Otis to claim the truth of a causal link between incarceration and reduction in crime rates, Mason McAward believes that a valuable experiment in underway that could inform future national sentencing policy. Since 2006, twenty-eight states have reduced their prison population through various mechanisms, and their crime rates have all dropped. Only time will tell if these positive results will continue and if they could eventually be extrapolated to the nation as a whole.

Kate Hardiman is a senior majoring in the Program of Liberal Studies and minoring in Politics, Philosophy and Economics. She is interested in attending law school, so this talk was of special relevance. Contact her at