- - Monday, November 9, 2015

One of the hot political issues now is criminal justice reform, an issue that has been picked up by activists on both the left and the right. The most common reform discussion is sentencing reform.

The activists pushing sentencing reform want lighter sentences for most offenses. Unfortunately, this push for lighter sentences ignores the real issues behind the criminal justice crisis.

In the 1980s, the federal government and many state governments abandoned lenient sentencing laws in favor of a get-tough-on-crime philosophy. This is usually blamed for the skyrocketing number of people in prison. While it may be a contributing factor, it is not the reason.

In a number of states, including many red states such as Texas and Mississippi, state legislatures have reconsidered the value of incarceration and are instead offering programs that divert non-violent drug offenders and others away from prison and into rehabilitation programs. These programs have initially been successful. Texas was able to drop its incarceration rate by 10 percent and at the same time, its crime rate dropped by 18 percent.

Since 1972, incarceration rates have risen by 500 percent. States like Mississippi, which had the second-highest incarceration rate in the nation, realized mass incarceration is simply unaffordable.

The real reason is the endless expansion of criminal laws. America has far too many criminal laws.

Today, there are about 4,500 federal criminal statutes. Individual states have hundreds of criminal statutes. The crimes range from the serious, such as murder, to the absurd, such as an orchid grower not having the proper paperwork to comply with an international treaty.

For there to be serious criminal justice reform, many laws, especially at the federal level, first need to be repealed. In almost every instance, federal criminal laws duplicate state criminal laws. Once a criminal law is created, it is almost impossible to repeal it. The law can be a horribly bad law or a law that is not being used for its intended purpose. Tennessee recently created the Office of the Repealer to repeal laws that were archaic or simply ineffective. Every state and the federal government should have a similar office that works to remove from the books laws, particularly criminal laws, that are old, ineffective or are even being misused.

Sentencing laws are a huge problem too. For the last 40 years, so-called experts have tried to turn sentencing into a mathematical formula. They claim that someone in Tennessee should get the same sentence for the same crime as someone in Massachusetts.

There is only one problem with that: People are different and crimes are different, even if it is the same offense. The power to punish has been taken away from the people and often given to unelected judges.

For there to be real reform in the criminal justice system, there must be real sentencing reform. The current sentencing laws must be scrapped and the power taken from judges and given to the citizens through the jury trial process. The legislature should set maximum sentences for any offense and then the rest is left to the jury.

If a defendant is tried and convicted, sentencing should belong to the jury. The jury should have the right to set the length of the sentence as well as determining whether the person gets probation and if so how long. The jury should have to right to give someone what is called split confinement as well, where someone is incarcerated for a period of time and then placed on probation. The jury should also have the right to sentence someone to prison and decide whether they are eligible for parole and if so, how much of the sentence the convict must serve before parole and finally if the person should even be allowed parole or whether they must serve the entire sentence.

Our Founding Fathers trusted the jury system. The right to a jury trial is the only right that is guaranteed twice in the Bill of Rights. The right to a jury trial is guaranteed in the Sixth Amendment for criminal matters and the Seventh Amendment for civil matters.

Thomas Jefferson wrote, “I consider Trial by Jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

Currently, the criminal justice system in America is a system at war not only with criminals but with law-abiding citizens. Only by returning this power to the citizens by repealing excessive laws and allowing juries to sentence those convicted of crimes, can we allow the U.S. Constitution to once again protect the rights of Americans.

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