Legal Commentary

For those of us who believe that America imprisons too high a portion of its population, recent years have seen mixed progress.  Many states have adopted measures that aim to move drug-addicted offenders involved in drug and property crime from jail or prison toward treatment under the threat of jail.  Other categories of prisoners who seem to be enjoying some increase in sympathy from the public and politicians include women  (whose crimes are often tied up with the criminality of abusive partners, and whose loss from the community often leaves a bigger hole than with men), juveniles facing long prison terms, and parolees returned to prison on technical violations (this may be a unique California problem but it includes tens of thousands of prisoners).  This approach has lots of political appeal right now, but it will not work to achieve a substantial and enduring reduction in the US rate of incarceration.  Instead, against all political common sense, I believe we need to directly address the extraordinarily harsh prison sentences we now hand out for violent crime.

The current approach takes aim at what might be called the ?soft underbelly? of mass imprisonment; those categories of prisoners who manifestly do not belong in prison (at least for long terms) and could be adequately punished and managed through better use of jail and probation (as well as drug treatment as diversion).  In contrast, violent crime constitutes what might called (at the risk of stretching a metaphor a bit too far) the ?hard-back? of mass incarceration (think the Terminator after all his cyborg flesh was burned off in the movie franchise of that name).  These are prisoners who for the most part are good candidates for imprisonment, but for how long? 

Not withstanding progress in attacking the soft underbelly, the overall rate of imprisonment in the US has continued to increase modestly despite crime rates that have remained relatively low over the past decade and a half (Bureau of Justice Statistics summary page on imprisonment).  The reality is that close to half of the national growth in imprisonment since 1980 consists of increased punishment for ?violent? crime.  If we are to cut into that growth, and just as importantly, permanently reduce the public appetite to punish drug users and other non-violent prisoners, we need to revisit the policies that send so many to prison for so long.

Punishment for violent crime is now extraordinarily harsh.  Just consider murder.  The average time served back in the ?70s in California prisons for 1st degree non-capital murder (under Ronald Reagan) was about 10 years (5 for 2nd degree).  Today 1st degree murderers do not get a parole hearing for a minimum of 25 years (less a possible third for good time) and 15 for 2nd degree, but given current parole practices many of these prisoners will never be released, or at best after 30 or 40 years of maintaining an exemplary record in prison. [read my recent Roger Hood lecture at Oxford University on California?s treatment of murder].  In contrast, most of the rest of the world releases murderers after 10 to 20 years.  [For a non homicide example read my blog post on an Oakland man sentenced to 70 years to life for a non-homicide crime spree].

We can debate just how long one should serve for murder of various kinds of seriousness (a debate I believe we need to have), but my main concern is the influence these life trashing sentences have on the who scale of penalty in the US.  Unreasonably long sentences for violent crime help sustain an unreasonably high appetite for imprisonment in the US in three ways.

• Price Signal

Natural life for non-capital murder sets a reference point that makes it seem reasonable to lock a burglar up for 25 years (under 3-Strikes) or a drug dealer for 50 years.  In contrast, if the sentence for murder were 25 years or less, it would be very hard to justify these sentences for non-homicide crimes.

• Net-widening Along the Criminological Continuum

American prosecutors, and to a large extent, the public, have long been influenced by criminological thought to believe that minor crime exists on a continuum with the most serious crimes through the causal role of ?criminality."  The popular ?broken windows? theory is just a rehashing of a criminological common sense that goes back to Lombroso, if not earlier.  The minor offender may well be on their way up the criminality ladder toward violence.  Likewise the prisoner who has already committed an act of violence is deemed capable of committing any crime.  It is this connection between minor criminality and violent crime that has generally led Americans to support the imprisonment of drug users and property criminals (the soft underbelly) when fiscal conditions are good and when crime fear is high.

• Hardening Prison

Just the shear number of life sentences is beginning to constitute a growing block of indigestible population within our prisons.  In California there are more than 30,000 prisoners facing the prospect of life in prison, with about at 1,000 new cases a year and around 5 to 10 releases.  The existence of a growing core of prisoners with no realistic hope of release will produce a prison culture that is even more anomic and criminogenic than the already exists in states like California.  Not only will such prisons be more dangerous places to work or serve time, they are likely to reinforce the public?s fear of crime.

My conclusion is that we need to undertake the hard work of rethink our legal response to violent crime. Just as a person who wants to lose weight sustainably has to check their appetite for pizza and chocolate (or Vodka in my case) not celery and carrots, a sustainable reduction in imprisonment will require us to check our appetite for punishing the manifestly violent.