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104 Minnesota Law Review 2715 (2020)


In his forthcoming book, The Insidious Momentum of Mass Incarceration, Frank Zimring proposes two alternative methods to decarcerate: states can adopt a categorical imperative to reduce prison populations or states can reform the governance of sentencing. This symposium Essay focuses on the first of these options, as proposed in his tentative Chapter Six, wherein Zimring calls for categorically removing drug-addicted offenders from eligibility for prison sanctions and expanding use of jails for categories of offenses or offenders.

These methods, I suggest, exist in tension with numerous popular sentencing reforms being implemented in the states right now. Popular reforms, including the expansion of drug courts and the institutionalization of actuarial risk assessment instruments (RAIs or tools), directly or indirectly contradict the pragmatic, structural methods that Zimring proposes in his book to incentivize reductions in state prison populations. By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern within sentencing reform policies adopted in the era of mass incarceration. I argue that reforms focused on identifying categories of offenders for diversion from prison sentences may undermine the call to decarcerate by obscuring the ways that policymakers continue to use the carceral state as the preferred method to respond to sociopolitical problems in society. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the contours of reform agendas going forward. Practically, it requires strategic engagement with the broad scope of pragmatic reforms, a point that Zimring urges with his categorical imperative. Theoretically, it requires reflection on the methodologies implemented to shape a decarceral agenda more broadly. I thank the Minnesota Law Review for the opportunity to think about these issues as part of this timely symposium.

The Essay unfolds in three Parts. Part I introduces Zimring’s categorical imperative and juxtaposes it against common sentencing reforms in the states, including drug courts. Part II explains the tension between the categorical imperative and the institutionalization of actuarial risk assessments at sentencing in particular. It highlights how Zimring’s suggested method and RAIs at sentencing invoke different meanings of “categorical” reform and maintain diverging capacities to raise broader critiques of the carceral state. Part III considers what strategic and methodological insights the categorical imperative offers for sentencing reform efforts going forward.