In examining the range of the discretion held by judges in sentencing offenders for drug crimes, the scholarly literature suggests that, for most non-violent drug offenders, a custodial sentence is counterproductive and likely to foster a vicious cycle of recidivism. Because addiction is a disease that requires treatment that is not typically available in prison, drug offenders are second only to offenders with untreated mental health disorders in terms of their propensity to engage in recidivism. As a consequence of this, approximately 40% of those who are imprisoned in the United States are serving sentences for non-violent offenses, and while this segment contains both individuals having committed non-violent drug and property crimes, these groups overlap significantly. With rates of addiction and mental illness high amongst members of this segment, it has become clear that alternatives to custodial sentences must be developed so as to simultaneously punish and rehabilitate these individuals.
Judicial discretion has been viewed by many in the legal profession as representing the optimal structure for reducing prison overcrowding resulting form the War on Drugs. Judicial discretion exists when judges are allowed to move away from traditional sentencing guidelines so as to either apply shorter custodial sentences or alternatives to custodial sentences for nonviolent crimes. Judicial discretion can be based on many factors, including but not limited to the background of the offender, the motivations associated with the crime, and any extenuating circumstances associated with the commission of the crime. The general purpose of judicial discretion in sentencing is thus to allow the judge to provide the offender with a sentence that is both in their best interests, and in the best interests of society. In the case of drug offenses, such discretion often leads to non-custodial sentencing involving mandatory treatment and rehabilitation.
In contextualizing judicial discretion, incarceration has historically represented the primary tool used to punish non-violent drug offenders in the United States. Judicial discretion is meant to provide judges with alternatives, like drug courts, diversion and community corrections programs, to allow offenders to access treatment and thus avoid the vicious cycle of recidivism discussed above. For one, the community corrections approach is one in which an offender is typically placed under house arrest, while allowed to continue their work and some social activities like church attendance and school, all the while they undergo substance abuse treatment. With prisons overcrowded and largely incapable of providing appropriate rehabilitation for drug offenders, the community corrections model is a treatment-first approach which leads to incarceration should an offender violate the terms of their community corrections contract.
