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Mass Incarceration: A Lack of Substantive Rights

Two types of Justice Procedural Justice & Substantive Justice


People are always saying how we have a problem with mass incarceration, and that we need more rights. However the usual response to this is argument is we have more rights then virtually any other nation on earth. It is true that defendants do have a lot of rights. However most of these rights are procedural. For purposes of this article procedural rights refers to the process by which a criminal defendant is found to be guilty of a crime. The vast majority of defendants who are convicted are in fact guilty of something. However most criminal courts in this country offer very few substantive rights. For purposes of this article substantive rights refers to how the court sentences a defendant once he is found guilty (i.e. substance of criminal law is how we deal with people who have been found to have committed a crime).


Defendant’s have almost no rights when it comes to challenging whether or not their sentence was proportional to the crime they committed. This is true despite the 8th amendment of the U.S. Constitution prohibiting Cruel and Unusual Punishment. In fact whatever sentence a judge imposes on the defendant is presumed to be proportionate as long as it is a lawful sentence. The problem with giving judges this much discretion is that criminal statutes have a wide range of legal sentences. For example in Florida sometimes judges have the discretion to sentence a defendant anywhere between 0 – 15 years in prison. Even if a judge gives one defendant 15 years in prison, and then on a different case gives a defendant no prison time at all for a similar case there will be virtually no legal basis for the first defendant to challenge his 15 year sentence.


Some legal scholars have claimed that there are two parts of justice. Procedural justice (i.e. due process) and substantive justice (which requires compassion). Herein lies the controversy with our criminal justice system. Too many people believe that justice is only procedural, so as long as the defendant received his sentence pursuant to the law then justice was done. However others believe that the defendant must receive substantive just as well, which would include a sentence that is proportional to his crime.


In conclusion mass incarceration in the United States stems from a lack of balance of rights. The majority of rights given to a defendant are almost entirely procedural. The lack of a defendant’s substantive rights often times results in lengthy prison sentences for minor crimes. In addition to making sure that defendant’s have substantive rights as well as procedural rights, the criminal justice system must link the procedural rights to the substantive rights (i.e. if a defendant is convicted of crime “A” then he should be sentenced for crime “A”).