Imprisonment and the Right to Freedom of Movement

In American politics, it is common for liberals (and not uncommon for conservatives) to advocate imprisoning fewer offenders. ¹ Advocates of penal reform have given many reasons to replace prison with alternative sentences for nonviolent crimes, in particular: among them, that imprisonment of nonviolent offenders is a poor use of public resources, compared either with alternative punishments or with non-punitive ways of preventing crime (King 2005; Stemen 2007); that the experience of prison, at least in the United States, often has the opposite of a rehabilitative effect (Dolovich 2009); and that there are racial disparities in the rates at which nonviolent offenders receive sentences of imprisonment (Blumstein 1993). Though advocates of penal reform have given many reasons our government should not imprison nonviolent offenders, they typically have not questioned government’s general entitlement to impose sentences of imprisonment for a wide range of offenses. Most of the standard arguments for penal reform object to incarceration not in the abstract, but in the context of contingent facts about the availability of alternative sentences, the effects of incarceration, and the ways in which the criminal justice system responds unfairly to class and race.