Friday, August 17, 2012

How Long is Long Enough?

It is hard to say whether they are the worst crimes.  They are the crimes that horrify the most.  A baby-sitter, for no apparent reason, strangles the 15-month old child she has been hired to protect.  A professional thief shoots a young police officer in his face, while the victim is on his knees in a farm field pleading for his life.  The baby-sitter is only 19, and has lived in abusive foster and adoptive families all her life, but her past troubles do not excuse an unprovoked murder of a helpless person she has been left in trust with.  The thief wrongly believed that under the state's "Baby Lindbergh" law he faced the death penalty already for kidnapping the officer (who had interrupted escape from a crime quite by accident), but that understandable failure of deterrence to operate perfectly hardly excuses the crime.  Both offenders deserve serious punishment,  the most serious available.  Assuming the death penalty is off the table, how long should they serve in prison?

The baby-sitter, Betty Smithey, just recently received parole from the state of Arizona, earning the title of the longest serving to be released alive from prison, having been imprisoned for 49 years for the crime she committed in 1963 (read about her parole in the LATimes here). The thief, Gregory Powell, died last week after serving the same length of time, coincidentally also for a crime committed in 1963 (read his obituary in the NYTimes here).  Powell's crime became the subject of a famous book and movie (Joseph Wambaugh's The Onion Field), a fact which along with the fierce opposition of the LAPD may have accounted for the fact that he never did receive parole (although his crime partner did in 1983).

No doubt many would say that, at least as compared to the death penalty, or being murdered, fifty years in prison is not unacceptable. I find myself in total disagreement.  These sentences are too long, way too long.  Am I just incapable of imagining the victims perspective?  Do I just intuitively sympathize with the living soul in prison while my imagination departs unjustly from the departed?  Perhaps (at least that's my brother's theory), but I have two thoughts to share, one as a penologist (a student of prisons), the other as a criminal law teacher.

What purposes are served by such long sentences?  At Betty Smithey's final parole hearing one of the Board members was quoted as saying: "I really see no value in keeping you in prison any longer. I really see no value in keeping strings on you any longer.."  But at Gregory Powell's final parole denial (some years ago), or when the state of California denied him even compassionate release so he could die outside a prison, what value would they have cited?

No doubt the Chief of the LAPD would say deterrence in Powell's case.  Every potential cop-killer ought to know that if they kill a cop they are going to die in prison, either by lethal injection or old age.  Really? That's been pretty much the case for years but I would place my money on Kevlar and better training for having reduced officer deaths over the years.  If deterrence works at all in the mental illness, or drug, or fear addled brains of an armed individual coming into shooting range of a police officer (and Powell seems to be one of the few criminals in history who knew about a special law aimed at a particular crime, too bad he remembered it wrong) there is zero evidence that anywhere near fifty years is required to maximize deterrence.  There is shockingly little empirical evidence on what lengths of time in prison are necessary to achieve deterrence, but from what we know about the equivalent (but opposite) cognitive function, from research on how much people will pay to protect themselves against large but remote risks, it appears most of us respond far more to likely but relatively minor risks and ignore catastrophic but unlikely ones.  My own intuition is that whatever deterrent value there is in a threat to be sent to prison probably maxes out at a credible threat to be locked up for some years, probably less than ten.

Incapacitation is the major rationale behind California's uber long prison sentences.  But from everything we know about criminal careers, Smithey and Powell could have been released years earlier than the ages at which they paroled (69), or died (79).  Most criminal careers flat line after 40 (one hopes that is less true of other kinds of careers).  Neither Smithey or Powell were disciplinary problems during the last decades of their imprisonment.

Many readers will cite retribution, the punishment offenders deserve for the crimes they have committed.  Research suggests that retribution corresponds to the moral intuitions of many people about crime and punishment, and that people mostly agree on which crimes deserve more serious punishment than others; but there is no agreement or objective moral basis for determining how long is long enough.  Once you abandon the metaphoric relationship between the life taken in a murder, and the life of the offender, which is the appeal of the death penalty and whole life terms, there is no particular reason to choose any term of years (although I think ten has some metaphoric value because of the strong role of decades in our own narratives about life).  Nothing like that metaphoric relationship exists for other crimes like robbery, rape, or kidnapping.

This is where penological thought kicks in.  My own exposure to long serving prisoners over the years convinces me of two things.  First, people change.  The men I meet when I speak to classes at San Quentin, describe the men they were when they arrived at prison as profoundly different and I believe them and can see with my own eyes who they are now.  Second, it takes time to change but for most people it does not take more then ten years.  This makes the decades stacked on after ten or twenty years devoid of any meaningful value.  To the prisoner facing them, stretching into the future toward death, this is "cruel and unusual."  To the rest of us who will likely pay many times the average per year costs for incarcerating them during their old age (when medical costs cause the overall cost of imprisonment to skyrocket), this is a useless excess.

My own view is that the only reason to hold someone more than ten year is either specific information to believe that they are likely to remain a threat when released (like continued involvement in criminal gangs while in prison) or the need to mark the public condemnation of the crime (as in the case of multiple or mass killings), and even then another decade and a half ought to mark our true maximum (twenty-five years).  My views, of course are extreme.  Consider that legislation just passed after years of efforts by San Francisco's wonderful Assembly Member Leland Yee, designed to comply with the Supreme Court's mandate in 2010 that some juveniles sentenced to Life Without Parole (LWOP) be resentenced, would establish twenty-five years as the minimum before a prisoner sentenced for such a crime could be released (read about it in the Sacto Bee here).  Assembly member Yee's measure barely passed by one vote and it is not clear that Governor Brown will sign it.  I hope he does. 

1 comment:

tamar birckhead said...

Thanks for this post, Jonathan. I agree completely and would add that your argument for maximum sentences of a decade resonates even more strongly for juvenile offenders. I have written more about this on my own blog here: http://juvenilejusticeblog.web.unc.edu/2012/08/27/sentencing-youth-as-adults-harms-us-all/
Best,

Tamar Birckhead