The Prisoners’ Dilemma

Long before the pandemic, when the word “corona” was mostly associated with a beverage with a lime, I made the point that sentences had grown outrageously long, beyond any rational justification. I blame Nelly Rockefeller for starting this mess, his idea being that if we make sentences irrationally long, rational people will stop committing drug crimes to avoid them.

This idea failed because Nelly miscalculated the causal connection between deciding to commit a crime and reason. The more significant factor was the likelihood of being arrested, not the length of sentence, and so the Rockefeller drug laws failed to produce the desired results. And unable to let go of the notion, sentences were made longer and longer, as if one more decade would do the trick because the first few weren’t Draconian enough.

These absurdly long sentences were inexplicably perceived as somehow the “right” length of time, even though the notion that there is a “right” length of time can’t be justified by any objective logic. And while the justification for incarceration is expressed in more sophisticated ways by academics, to the public, they were always about simplistic retribution, punishment.

So the life plus cancer sentence is what the bad dude “deserves,” as if “deserves” was anything more than the visceral sense of right and wrong, good and evil. This isn’t to say that retribution isn’t, or shouldn’t be, a part of the package. It is a legitimate basis for sentence, even under the five factors* used by scholars to justify incarceration in the first place. But how long is long enough? It’s whatever people feel it is, whatever a judge feels it is. It’s just some random number pulled out of their butt and justified as if there’s some actual reason for it. There isn’t. There never was.

Now we have a pandemic, a virus that might well kill, and a bunch of old guys in prison, an incubator for infection which lacks the capacity to provide for either appropriate safety precautions or medical care. The inmates aren’t the sort of folks most people think about or care about, because they’re inmates. Granted these inmates weren’t sentence to death, neither were the folks on the outside who weren’t convicted of anything and will die.

Sure, some might not be guilty for real, but most are. But more to the point at the moment, we’re more worried about ourselves, our families, our parents. If there’s some old folks to worry about, they share your last name.

Over the course of the past month or so, calls have been made by criminal reform activists, public defenders, prison officials and even a pundit or two, for the release of aged-out prisoners. For the most part, these demands are only heard within their own echo chambers, where they garner “likes” on social media and little else. The warnings have been severe:

“We need to take the unprecedented step TODAY of providing urgent release to everyone in the jails who is at risk of serious morbidity and mortality from COVID,” Bedard wrote on Twitter.

Rachel Bedard is a geriatrician on Rikers Island. She knows what she’s talking about, and there is no one with any familiarity with jails or prisons who disputes what she’s saying. The only counterargument is that releasing prisoners would put them on the street with no place to live, no job, no ability to support themselves, which is, of course, true but fails to address the problem: Stay inside and risk death, which isn’t a solution.

So why isn’t this working? Why isn’t this working with even a guy who plays a progressive on TV?

What can be done? A large number of aging prisoners have applied to Cuomo for clemency, many of them months ago or longer. As governor, Cuomo has the power to grant those requests and return some older prisoners to their families, where they could live under either home confinement or with other restrictions. It’s true that some of them committed violent crimes, but they have typically spent decades behind bars and no longer present a threat. They don’t deserve a death sentence.

New York’s governor, Andy Cuomo, has been getting high marks for his advocating for his state by spouting platitudes on TV with sufficient frequency to make Chuck Schumer blush. Before coronavirus, he was never a big fan of executive clemency. Apparently he’s still not.

In recent years, more politicians have come to recognize our country’s policy of mass incarceration — and our tolerance for wrongful convictions — as an inhumane mistake. In the short term, clemency is a tool that can make a difference, especially in the midst of a pandemic. But Cuomo and other governors will need to act quickly.

The alternative to “act quickly” should be “act slowly,” but it’s far more likely that Cuomo won’t act at all. This isn’t about releasing pre-trial detainees, or misdemeanor prisoners, or even the mythical “non-violent drug offenders” who were reputed to clog our prisons. This is about old guys who have done decades and are most likely to die.

The dilemma here is that they’re paying the price, perhaps with their life, for the hysterical rhetoric on both sides. The reformers cry that everything is outrageous, often lying about their tales of woe to evoke the tears of their unduly passionate fans. The tough-on-crime crowd cries about letting killers loose to kill again. And the carceral right and left both cry “Harvey Weinstein,” who ironically has tested positive for COVID-19, not that either sides seems to care.

When I wrote up top about how I’ve been arguing about the absurdity of the severity of sentences, it wasn’t to extol my virtue or prescience. Rather, it was to point out that the problem is wholly manufactured out of baseless feelings, that there is some “real” basis to keep a guy in prison for 37 years rather than, say 35. Now that there is a good chance he could die for it, the justification for that back end of the sentence comes into clearer focus. It was irrational before, and now it’s irrational plus unjustified death.

But then, will Cuomo take time away from his television appearances to cut these guys loose? What if one of them commits a heinous crime like rape, which will come back to bite him in the butt. Then he might never be the next progressive darling to run for an office higher than Nelly ever achieved. And who really cares about some old guys dying in prison outside of a small circle of friends?

*The five considerations for punishment are:

  1. General deterrence
  2. Specific deterrence
  3. Isolation
  4. Retribution
  5. Rehabilitation

8 thoughts on “The Prisoners’ Dilemma

      1. Howl

        I kinda figured. That show is on many top ten Dead concerts lists, a definite must listen. Didn’t get to that one, it was finals week, and just the beginning of my Deadhead odyssey. A long strange trip indeed.

        Reply

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