20 And Out

At Vox, German Lopez proffers what he calls the “radical” notion of capping all prison sentences at 20 years.

It’s time for a radical idea that could really begin to reverse mass incarceration: capping all prison sentences at no more than 20 years. It may sound like an extreme, even dangerous, proposal, but there’s good reason to believe it would help reduce the prison population without making America any less safe.

To the extent it might sound dangerous, that’s the by-product of the past 50 years of tough-on-crime appeal to our emotions, that bad things, horrible crimes, were happening and threatened our lives, our safety, our loved ones. The fix was to lock them away, for longer, then longer, then longer still.

In the 1980s and ’90s, American officials by and large believed the country was in the middle of a crime wave and an underincarceration crisis; they responded by increasing the length of prison sentences, enacting new mandatory minimums, and restricting the use of parole.

This is a gross oversimplification of what happened, as crime, in general, and murders, in particular, spiked to shocking levels in the 1980s. But the concept came earlier, as the Rockefeller Drug Laws were premised on the simple notion that the more Draconian the sentence, the less likely someone would commit the crime. This made enormous sense to people, which didn’t make it a sound penal approach but an easy sell.

The problem was that the premise failed, and failed spectacularly. Rather than accept that people who commit crimes don’t perform rational cost-benefit analyses in advance, and often lack better alternatives as their options were limited, the simplistic response was to keep making  sentences longer. If one pill is good, two must be better, right?

And when some judge “Brock Turner’ed” somebody who went out and whacked an adorable grandma, we then imposed another simplistic fix on top of long sentences, mandatory minimums, to stop those criminal-loving commie judges from cutting killers loose.

Over time, we grew inured to the notion that a “fair” sentence involved decades rather than years. The dirty little secret of law is that there is no magic number of months or years that cures a criminal. The legitimate purposes of sentence, reduced a bit to punishment and deterrence, aligned with the gut assumption that more would work better. And when it failed, the answer was always more. Just one more decade and crime will be solved.

Crime, in general, and murder, in particular, have now dropped to historically low rates, and nobody can explain why, although the life-plus-cancer crowd takes credit, claiming that the harsh sentences that failed for decades have now succeeded. See? It works! For the same reasons it appealed to people for decades, it still appeals to them, even if they fuzzy all the edges to get there.

But there is a curious trend militating against the decades-long belief in harsher is better.

Today, with crime rates lower, Americans more readily believe that the country has an overincarceration problem — one that disproportionately afflicts minority communities, as black and brown people are far more likely to be locked up than their white peers.

Prison Nation kicked us in the head a few years back, as people began to ponder the idea that we’re more carceral than all the authoritarian countries we’re quite sure aren’t as good as us. The low-hanging fruit hook is that minorities are disproportionately arrested, prosecuted and incarcerated, which contradicts the social justice certainty that it can’t be justified so it must be racist. Of course, disproportionate incarceration doesn’t mean there aren’t a lot of white dudes in prison, even if the working theory is that only black and brown guys go to prison. It’s false, but feeds the narrative.

Lopez offers many of the sound reasons for why longer isn’t better, why longer is destructive and counter-productive. For example, people age out of crime, so at a certain age, the likelihood of recidivism becomes negligible. Some of the arguments are less persuasive. But Lopez, somewhat inadvertantly. happens on a key factor while Gertruding his way through his argument.

For a lot of people, this is going to sound ridiculous. Twenty years for murder or rape? That doesn’t seem proportional to the crime.

Before sentences were ratcheted up to life plus cancer, 20 years for murder was a very stiff sentence. Today, it may not seem proportional to the crime, but that’s because we’ve shifted our sense of proportionality as decades were added on. Ten years in prison is an extremely long time. Twenty? That’s a huge length of time. Lopez, like almost everyone in his generation, has grown up under a sentencing regime where decades were normalized as the “proper” period of incarceration.

And notice how he slipped “rape” in there with murder? There are reasons why the sentence for rape was, and should be, less than murder. First, it’s not murder. As awful as rape is, the victim is still alive. But more importantly is the incentive system, that a rapist not kill his victim to protect himself from detection. Getting nailed for a rape is bad, but not nearly as bad as murder. Don’t kill the victim.

As appeals to emotion have seized control of the public’s sensibilities about crime and sentencing, we’ve lost touch with why we do the things we do, and whether there is a sound public policy purpose to it. Capping sentences at 20 years isn’t a radical notion, but an extremely conservative one, returning our sentencing regime to the days before Nelson Rockefeller had his brainstorm and we fell prey to our lesser gut instincts that we could harsh our way out of the crack epidemic.

Ten years was traditionally an extremely long sentence. Twenty was huge. There’s no magic to adding more time on the back end. But our sense of retribution has changed over the past 50 years, just like German Lopez’s, such that a twenty-year sentence just doesn’t feel severe enough. The biggest impediment to 20 and out isn’t substantive, but that we’ve got it stuck in our heads that 20 years isn’t nearly harsh enough to sate our emotional blood lust. Do 20 years and see if it’s no big thing.

25 thoughts on “20 And Out

  1. David

    If you are not already aware of the leaded gasoline theory of violent crime I urge you to search for Kevin Drum’s many blog posts concerning the correlation.

    1. SHG Post author

      There are many theories, leaded gas (and paint) being one of them. I’m sure there’s a cool discussion about it on reddit.

  2. Richard Kopf

    SHG,

    With respect, the maximum 20-year argument is a fun debate topic but it will never happen because it is silly. It won’t happen for the reason you articulate so well–we have been habituated to overly long sentences. Also, it won’t happen because there are so many monsters out there for whom 20 years is manifestly insufficient no matter what theory of punishment one adopts.

    All the best.

    RGK

    1. SHG Post author

      Monsters exist, but are few and far between. Lopez offers a mechanism for dealing with the real monsters with five-year extensions where arguably warranted. But of course it won’t happen, because decades in prison are magic. Everybody knows that, especially the younger federal judges who weren’t around before Mistretta established the new normal and don’t grasp how outrageously and baselessly long sentences have grown.

    2. David Meyer-Lindenberg

      Judge,

      As you know, there’s a body of research suggesting people are markedly less likely to commit violent crimes when they reach middle age, and that this is true even of those diagnosed with psychopathy. Is 20 years – almost always “imprisonment until middle age” – insufficient even if we know they’ll be much less likely to reoffend when released?

      All the best,
      David

      1. Richard Kopf

        David,

        Insofar as a 20 year cap is concerned, it is no more rational than the present mandatory minimums. But I agree with you that many, but not all, people “age out” of crime.

        All the best.

        RGK

        1. Jake

          Judge,

          In your professionally informed but personal opinion, would you classify the majority of those who are highly likely to re-offend later in life and after lengthy prison sentences as monsters or human beings suffering from mental illness?

          Best,

          Jake

        2. KP

          I assume a lot of people “age out” of living in society too, so after 40years you walk out almost at pension age into a world that is completely alien.

          Sooner or later you become so distant from what is happening you don’t have a chance of fitting back in.

    3. John Neff

      Judge I wonder if we have become habituated to overly long sentences. First you have to have legislatures that are unwilling to increase sentence length and there a signs that is happening.

    4. B. McLeod

      Maybe legislatures could craft something with some elements of corporal punishment added to the incarceration, like a 20-year sentence, but the inmate gets a daily flogging as well.

      1. PseudonymousKid

        Now we’re talking, comrade. Let’s get street judges out there on bikes executing criminals in real-time. Can’t be a recidivist if you’re dead, right? Or, or, or forced conscription into the military. Service guarantees citizenship, after all. This “theory-crafting” might be pointless, but damn if it isn’t fun so long as I’m not the one dying or being conscripted, of course.

        If I could draw Judge Kopf as a street judge, it would already be done. Pops didn’t encourage my artistic ambitions enough though. Something about getting a degree that’s worthwhile to the capitalists, or something like that. My memory is hazy after all these years.

      2. Casual Lurker

        “…elements of corporal punishment added to the incarceration…”

        You’re not far off from what Singapore and Malaysia still do. A residual legacy of the British colonial judicial system. (Britain itself continued the practice of caning until 1948).

        Like the “Progressives” of today, maybe a “progressive prison” will allow those sentenced to caning to have the protective coating of their choice put on their backs, beforehand.

        The above vignette is called “The Convicts”, with comedic actor Jack Gilford (Cohen), from the 1965 vinyl LP “You Don’t Have To Be Jewish”.

  3. AX

    Fun thought project we are having. How about max being the greater of 20 years or to age 45. And then crime committed at 45 or older max goes to life since they broke the middle age statistic. Call it a progressive sentencing model.

  4. Erik H

    Given the public sentiments w/r/t long prison terms, I would be concerned that a max-20 rule would somehow result in average longer sentences. Yes, some of the folks who currently get 30 might end up with 20 (absent Lopez) but people are very retributive and I wouldn’t be surprised if the result was that people who currently get 15 are then going to get 20.

    No, it makes no sense, but neither do many of the other changes; I have little faith in “sense” when it comes to sentencing.

  5. LocoYokel

    Where is Australia when we need a place to dump people for the rest of their lives and not have to worry about prisons or guards? Let’s hurry up and get that lunar colony going.

  6. Mark Creatura

    This has been tried, on a large scale:
    “Deprivation of liberty is the usual form of punishment for non-political high crimes. In 1922 the maximum limit was set at 10 years but in 1932 this was raised to 25 years for counter-revolutionary crimes.” Harold J. Berman, Principles of Soviet Criminal Law, 56 Yale L.J. (1947).
    Yes, it is a canard. Duck is tasty.

  7. Jardinero1

    It’s not Tuesday. I will probably get a whooping for going slightly off topic. You reference the Vox article. I add a little data from Texas to it. The data kinda supports but kinda refutes it, depending on how you interpret it.

    In Texas, the average sentence length for all prisoners in TDCJ is about 19 years. That is a long time. But, the average sentence length for the intake is about 7.5 years. The average time served on release is currently about 4.5 years. Total releases and total intake are are about equal every year, 67,000. But there is a core population, about 80,000, serving very, very, very long sentences and boosting the average for all prisoners.

    The bulk of the prison population, year after year, in and out, is averaging less than five. Extrapolating, over ten years there are 670,000 ex-cons added to society, who averaged less than five years. But, over the same ten years, that core group of long term prisoners, about 80,000, remains about the same and remain incarcerated. In toto, the long term prisoners are a relatively small proportion of all prisoners over any time period. Small solace if you are one of them.

    Crime rates are stable or falling, in spite of the routine release of 67,000 prisoners a year, into the general population. So yes, the Vox article is kinda right. On the other hand, the system is retaining a group who have been given very, very long sentences. It is an open question whether these long term prisoners would cause more crime or not, were they released early.

  8. rojas

    “And when some judge “Brock Turner’ed” somebody who went out and whacked an adorable grandma,…”

    As a regional issue, but one that many states went through, I’d also point to jail overcrowding with mandatory good-time an additional factor from the “can they walk and chew bubble gum” file of voter perception.
    In Texas the average percentage of sentence served got to a low of less than 20% ~1991. We went on a prison building spree and lobbied for increased penalties at the same time. By 2002 we had the average time served at about 75% with longer sentences to boot.

  9. The Real Kurt

    Seems to me that the limit on incarceration should perhaps not exceed the limitation on prosecution.

    I seem to recall that there is no limitation on finding and prosecuting someone for capital murder, and that there are definite limits on other crimes. I’d not be surprised that there are variations according to jurisdiction, but the principle seems reasonable to me.

    Kurt

  10. Joe

    “[W]hen some judge ‘Brock Turner’ed’ somebody who went out and whacked an adorable grandma“ is the best thing I’ve read all week.

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