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We should all be grateful for Michael Tonry’s (2014, this issue) characteristically thoughtful article proposing 10 concrete steps to reduce the excessive reliance on incarceration in the United States. It would behoove legislatures and judges to think carefully about each of his proposals. The following remarks constitute an attempt to expand on some of his observations and offer a few cautionary notes about some of his proposals.

At the outset, however, it is important to note that I fully agree with the general premise of Tonry’s (2014) article, which is by now conventional wisdom among criminal law scholars and practitioners and, increasingly, as Tonry is at pains to document, even among politicians on both the right and the left of the American spectrum: The United States has a vastly overinflated system of incarceration that is excessively punitive, disproportionate in its impact on the poor and minorities, exceedingly expensive, and largely irrelevant to reducing predatory crime. Tonry is also correct that the public mood seems to have shifted at least to the extent that fear of crime no longer drives the political debate as it has for so long in the United States. Reductions in imprisonment, in particular, and a movement away from harshly punitive attitudes in general, are no longer politically unthinkable for candidates for public office, as they have been since the late 1960s. As Tonry emphasizes, it might be an opportune time to consider specific proposals to implement this revived willingness to think about crime in a less fearful and vindictive manner.


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