The Disassembly and Reassembly of
U.S. Sentencing Practices
KEVIN R. REITZ
A process of recombination has been occurring in U.S. sentencing practices in the past three decades, in the sense that the foundational elements of punishment law and policy have undergone a kind of disassembly followed by a still-incomplete period of reassembly. In the important domain of the legal structures of punishment—the statutory and discretionary frameworks for sentencing decisions—the days are now gone in which every U.S. jurisdiction adhered to a similar approach. Since the mid-1970s, the United States has witnessed an unprecedented “sentencing reform movement” that has produced widespread and diverse structural experimentation among the nation's sentencing systems. Also, in terms of the numbers and severity of criminal punishments imposed, almost everything about the 1970s, 1980s, and 1990s has been dramatically different from the preceding decades of the 1940s, 1950s, and 1960s. Beginning in the early 1970s, the United States set out on a course of “punishment expansionism” that has entailed everincreasing applications of all major forms of criminal sanctions. No resting place in the expansionist trend has yet appeared on the horizon. Finally, and in parallel with the upheavals in legal structure and systemic outputs, the theoretical fabric of U.S. sentencing had largely unraveled by the early 1970s and the process of finding new theoretical approaches has continued, without satisfactory completion, through the 1990s.
This chapter canvasses such recombinations in U.S. sentencing structures, outcomes, and theories during the current “expansionist” era that began in the early 1970s. Such tasks occupy sections I, II, and III. Section IV then reviews a handful of important issues in U.S. sentencing practice that have not changed markedly during the past thirty years but that remain important areas of concern in the coming years. These include the persistent and unaddressed tragedy of racial disproportionalities in sentencing in the United States, the failure to develop realistic theoretical goals for punishment decisions, the need to undertake comparative studies of diverse U.S. sentencing systems in operation, the painfully slow progress