Making Sensible Sentencing Laws

Last week, we covered Marc Mauer’s proposal where he asserted that they should cap sentences to 20 years in prison “except for individuals who present an undue risk to public safety.”

The core of his argument is that “for a number of reasons, sentences of more than 20 years are largely counterproductive and are extremely costly.”

Most notably, he argues, “Most offenders ‘age out’ of crime.” He cites research that shows that, after reaching a peak during the teen years, “offending begins to decline as individuals are in their 20s and drops sharply as they reach their 30s and 40s. As a result, for each successive year of incarceration there are diminishing returns for crime control.”

Indeed, the National Research Council concluded, “Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.”

Moreover, there is a false promise of long sentences for public safety. He argues, “Support for extremely long sentences, such as life and life without parole, is premised in part on the assumption that individuals receiving such sentences will reoffend if released. However, an analysis by The Sentencing Project found that individuals released from life sentences were less than one third as likely to be rearrested within three years compared to other formerly incarcerated individuals.”

Instead, studies show that caring for aging prisoners creates large and growing expenses. And long sentences incur opportunity costs as they divert resources from other public safety measures.

Mr. Mauer’s approach is not one size fits all. He made the case that the 20-year cap on prison terms would include the ability for parole boards or judges to add additional time to protect the public.

This would control costs in a system that exceeds capacity by as much as 40 percent, while bringing the policies in the US more in line with those of other industrialized countries.

The New York Times in an article, “Too Old to Commit Crime,” argues that “This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless.”

They cite research by social scientists that shows “that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime.”

They data is compelling – “Homicide and drug-arrest rates peak at age 19, according to the Bureau of Justice Statistics, while arrest rates for forcible rape peak at 18. Some crimes, such as vandalism, crest even earlier, at age 16, while arrest rates for forgery, fraud and embezzlement peak in the early 20s. For most of the crimes the F.B.I. tracks, more than half of all offenders will be arrested by the time they are 30.”

Most criminal careers, as discovered in research by Carnegie Mellon criminologist Alfred Blumstein, last for a duration of five to ten years.

The Times notes, “Property criminals, like burglars and car thieves, tend to stop in their 20s, while violent criminals are more likely to continue into their early 30s. Drug-crime careers can be lengthier, stretching into the mid-30s, yet long sentences have had little effect on the drug trade.”

“When you lock up a rapist, you take his rapes off the street. When you lock up a drug seller, you recruit a replacement,” Professor Blumstein said.

There are a number of reasons why criminal careers are short. The Times writes, “Neuroscience suggests that the parts of the brain that govern risk and reward are not fully developed until age 25, after which lawbreaking drops off. Young people are more likely to be poor than older people, and poorer people are more likely to commit crimes.”

They continue, “Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers.”

The answer is simple – American criminal law is not designed for the typical criminal, but rather the exceptional criminal.

This is despite evidence that “incarceration also produces crime” as inmates “learn new ways to break the law from fellow offenders.” Furthermore, “Prison also hurts their physical and mental health in ways that make them less productive when they are released.”

The Times concludes, “A sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release.”

However, as the Times notes, for many, prison is not just about preventing crime, but about punishment. In this way, longer sentences send the message that acts are unacceptable.

The Times notes, “Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one-size-fits-all leniency to even violent offenders.” On the other hand, “Yet looking at the social science, one wonders if Mr. Mauer’s idea goes far enough. After all, 47 percent of federal inmates are serving sentences of more than 10 years — longer than the typical duration of a criminal career.”

The Times notes that some should never be released based on “the horror of their crimes” or “their impact on the community’s sense of safety,” or “because they remain unbowed and were never rehabilitated.”

However, that population group is exceedingly small and American policy right now is aimed at the exceptional, rather than the typical, lawbreaker.

The Pittsburgh Post-Gazette in an editorial this past weekend notes, “Reducing prison populations to rational levels will take courage, foresight and fresh ideas. The alternative is wasting billions of dollars that could be better spent on education, health care, crime prevention, transportation and other vital needs.”

—David M. Greenwald reporting