Over a PrawfsBlawg, Eduardo Penalver admits that he doesn’t get the point of a sentence of 5 to life. 

Along with all Tupac fans, I’ve heard of “twenty-five to life.”  But “five to life” seems to leave enormous room for disparity based on the sentiments of the parole board, no? 

He’s not alone in having some difficulty understanding an indeterminate sentencing scheme.  Most clients don’t get it either, though they would never admit it.  The clue is when the defendant’s babymama asks you for the third time what the potential sentence is, there’s a comprehension gap.

As a public service, I offer a stab at explaining the idea.  The concept is to give judges wider latitude in sentencing options in order to accommodate the breadth of potentially heinous conduct giving rise to the technical commission of the offense.  That statute will provide for a maximum sentence (say 7 years) with the minimum to be one third of the maximum (here, it would be 2 1/3 years, giving a sentence of 2 1/3 to 7 years in prison).  See New York Penal Law 70.00, for example.

The anticipation is that the defendant will serve 2 1/3 years if he conducts himself appropriately in prison.  The two thirds of the sentence that aren’t served are the hammer for good conduct and rehabilitation, both in prison and on parole afterward.  It’s a carrot and stick concept.

Using the 5 to life example, the statute provides for a maximum sentence of life imprisonment, meaning that the nature of the crime deserves lifetime parole supervision, or at least the potential to put the defendant back in prison for subsequent criminal conduct for the rest of his life.  But the 5 years is the relevant period of actual imprisonment, provided the defendant behaves. 

The mistaken assumption is that after 5 years, the parole board then gets to sit as a superjudge on the original crime for which the defendant was sentenced.  While  some parole boards do, in fact, abuse their authority do revisiting the original sentence to decide whether they “like” it and deem it sufficient, that is contrary to their purpose and authority.  It is not up to the parole board to judge the wisdom of the original sentence, but to determine whether the service of that sentence fulfilled its purposes of deterrence and rehabilitation.  In other words, has the defendant adjusted properly in prison and is he ready to come out and rejoin society. 

In the Warren Jeffs case, which gave rise to Eduardo’s question, the polygamous sect leader who raped and abused children was sentenced to two consecutive terms of 5 to life.  This is almost the same as a single sentence of 10 to life, except that good time reductions in the minimum sentence will likely calculate differently.  Since I’m not a Utah lawyer, I can’t say for sure or give any details off the top of my head and it’s not worth the effort to research the distinctions. 

Let’s assume that Jeffs will not be parole eligible until after he has served 4 years, 3 months of each sentence, meaning that his first parole board appearance will be after 8 years, 6 months, chopping a year and a half off the minimum sentence.  Since it’s consecutive rather than concurrent, the second sentence doesn’t start until after the first sentence is completed, and we add the two minimums together to determine his first eligibility date.

Assume further that Jeffs is a model prisoner,  He doesn’t beat up gang members or guards in prison, and has learned a useful trade (other than sect management) inside.  He appears before the parole board and they ask him if he’s learned his lesson.  He’s smart enough to say yes, as opposed to “I’ve done nothing wrong and you will all burn in hell for imprisoning God’s messenger.”   This is rarely the right thing to say to the parole board.  He is then told to keep his nose clean and sent packing.

Jeffs will then, theoretically, be subject to parole supervision, together with the conditions imposed by his parole officer, for the rest of his life.  It rarely works out this way, since parole will eventually get tired of spending its resources supervising him and cut him loose, but they at least have the ability to keep him under tabs until he dies. 

If one condition of his parole release is to stay 100 feet away from anyone under the age of 18, and he doesn’t comply, they can violate him, conduct an administrative hearing and toss his sick, warped, disgusting butt back in prison for a period of time.  So 5 is the carrot and life is the stick.  It makes some sense when the practice follows the theory.

Hope that helps, Eduardo.