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October 23, 2011

"When life is too long: Debate over older prisoners"

The title of this post is the headline of this notable new AP article, which includes data and discussion on very lengthy prison terms.  Here are excerpts:

Nationally, nearly 10 percent of more than 2.3 million inmates were serving life sentences in 2008, including 41,095 people doing life without parole, up 22 percent in five years, according to The Sentencing Project, which advocates alternatives to prison.  The increase resulted from lawmakers "dramatically" expanding the types and repeat offenses that carry potential life terms, research analyst Ashley Nellis said.

"The theme is we're protecting society, then the question is: From what?" said Soffiyah Elijah, executive director of the Correctional Association of New York, a watchdog group. She said with the cost of keeping a state inmate $55,000 a year — a cost that grows as they age and their medical needs increase — a financial analysis shows that parole and probation are far cheaper punishments that can also satisfy the public need for retribution.

Meanwhile, data show new crimes by convicted felons steadily declining from their teens through their dotage. "Most criminal behavior is tied with impulse control. The section of the brain that controls impulse control is the last section of the brain that becomes fully developed," Elijah said. There's a large drop-off in criminal behavior and recidivism after 40 or 45, she said, a point seldom made in public discussion "because it's not convenient. It doesn't dovetail with the kind of tough-on-crime mentality that results in votes."

Patricia Gioia, whose daughter was murdered 26 years ago in California and who runs the Albany chapter of Parents of Murdered Children, said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends.  "They should in effect be punished for this and should not enjoy the freedom that other people have to wander the world," she said....

A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995.  Five returned to prison for new felonies, none for similar life-term crimes.   By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.

"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found.  In New York, the number of lifers with few prospects for release has grown in the past decade, tracking a national trend and raising a new set of criminal justice policy questions.

"What kind of treatment programs should we be considering for the offenders who have a sentence of life without parole, or enter the system with sentences of 50 years to life?" Commissioner Brian Fischer asked recently on the 40th anniversary of the deadly riots at Attica, another maximum-security prison in New York.  Since the state's 1996 sentencing amendments for capital crimes, establishing life without parole for first-degree murder, inmates with that sentence rose from four to 223, with 15 more expected each year, he said.

New York now has more than 800 prisoners who are 65 or older, double the total a decade ago. It has no death penalty, though 34 states and the federal government do.  Federal prisons held 3,254 inmates age 66 or older in August, up from 1,326 in 2000.  From 1985 to 2006 in New York, 72 prisoners released when they were over 65 were returned for new crimes, less than 5 percent.

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After having repeatedly been promised that life without parole was going to be the replacement if only we'd repeal the death penalty, we now see the ground being laid for the repeal of life without parole.

This should surprise no one, since the promise of LWOP was a crooked and cynical bait-and-switch from the getgo.

Posted by: Bill Otis | Oct 23, 2011 11:27:41 PM

What do you call those of us who are pro-DP but anti-LWOP, then? I believe some people need to be kicked off the planet, but those who aren't should get a shot at redemption.

Posted by: Jonathan Edelstein | Oct 24, 2011 7:49:35 AM

Jonathan --

"What do you call those of us who are pro-DP but anti-LWOP, then?"

I don't call them anything, first because there's too much labelling at the expense of thinking, and second because they're a very, very small group. Indeed, until just now when I read your post, I had not known there was anyone who supported the DP but was anti-LWOP.

As is always the case with you, it's a thoughtful and interesting stance. I couldn't say that redemption is never possible; my personal experence suggests it is. On the other hand, my personal experience is not with those who have committed capital offenses. People who commit calculated murder have, I think, taken a step of the soul beyond anything with which I am familiar.

I hadn't known until now that you were a retentionist. Welcome to the club, and get ready for a pie in the face.

Posted by: Bill Otis | Oct 24, 2011 8:47:19 AM

Ok, The slippery slope is UPON us. First we cant use the DP because it costs too much. Now we cant use LWOP because once someone hits Social Security age they are no longer a threat. I guess they have learned their lesson. So with the liberals logic, we now can only sentence killers to 15-25 years with their current age being the decising factor. We are now trying to emulate the EU and Mexico -- where they have basically outlawed LWOP. This is why we need to KEEP the DP and actually expand it to more states. I for one don't want to see body parts being mailed to families, headless corpses and bodies hanging from bridges -- like in Mexico. That's where we are headed with this progressive logic. Make a 1st degree murderer have one of two sentences DP or LWOP.

Posted by: DeanO | Oct 24, 2011 8:53:04 AM

Wow, there is no place between the death penalty and bodies hanging from bridges. Glad to see hyperbole runs as wildly on the right as on the left.

Bill, I am anti-death penalty and pro-LWOP for crimes previously categorized as death eligible. I am also in favor of reconsidering the use of LWOP for other, lesser offenses (including lesser murders). It is time for a pragmatic, thoughtful review of all term-of-year sentences as well that is not infused with an hysterical tough on crime mentality.

Posted by: Ala JD | Oct 24, 2011 9:56:31 AM

"Patricia Gioia...said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends."

I'm sorry, but what purpose would that serve? Yes, it probably makes the parents feel better in a vengeance sort of way, but punishment shouldn't be decided by the victims. It should be decided by an impartial, objective judge (in both the professional title and verb sense). Making someone feel bad until they die is cruelty, plain and simple. It has absolutely no benefit to society.

Posted by: NickS | Oct 24, 2011 10:05:05 AM

Old Soviet Union were intellectually more consistent than America
They had not life:
30 years or a bullet in the head.
Come On!
Show us how good is your justice!

Posted by: Dott. claudio giusti, italia | Oct 24, 2011 10:13:18 AM

I hadn't known until now that you were a retentionist. Welcome to the club, and get ready for a pie in the face.

Mmmm, pie.

For the record, while I'm pro-DP, I do have serious misgivings about the process by which it's administered, albeit nothing that better public-defender systems and greater receptivity to post-trial actual innocence claims can't cure.

Anyway, the ones who have "taken a step of the soul" that puts them beyond the pale of humanity, as determined by a searching inquiry into their crimes, backgrounds and prior history, are precisely the ones we should execute. If the jurors don't return a death sentence, then they evidently see something in the defendant capable of redemption, and he or she should be given a chance to prove it.

The good thing about redemption, also, is that it can be proven empirically, by looking at a prisoner's conduct over an extended time. If that conduct shows a process of maturation, insight and genuine desire to make amends, then a parole board can decide whether it outweighs the original crime. This would necessarily be an uncertain balancing: extraordinary crimes may require extraordinary redemption, while more quotidian offenses might be expiated more easily. But again, unless a defendant is so absolutely evil as to require execution, he should at least have a chance to prove that he's earned back a place in society.

Posted by: Jonathan Edelstein | Oct 24, 2011 11:36:32 AM

Jonathan --

So let me ask:

"What kind of pie?"

One of the great movie lines of all time. I generally can't stand Barbara Streisand, but that one line rescued her whole career.

Moving right along...I'll just say that it's a dicey proposition to try to figure out how a person is going to act in free society from his behavior in prison. There was a recent dreadful case in which a Massachusetts convict won parole on the basis of what the parole board thought was his "rehabilitation." As the New York Times was later to report:

"Gov. Deval Patrick...accepted the resignations [of five parole board members] after a review found that the board did not follow proper protocols in deciding to free the parolee, Domenic Cinelli. Mr. Cinelli, who died in a shootout with the officer [during an attempted robbery], had been serving three concurrent sentences of 15 years to life when the board released him in 2009 based on good behavior over the previous decade."

The whole story is here: http://www.nytimes.com/2011/01/14/us/14parole.html

Posted by: Bill Otis | Oct 24, 2011 3:29:11 PM

Bill, I'd heard of the Massachusetts case. I could be pissy and argue that this was a failure of the system, in that the parole commissioners evidently failed to follow their own guidelines and protocols. But I'll agree that even when proper protocols are followed, there's never any way to be 100 percent sure.

At some point, though, society needs to take the risk. I've seen you argue in the past that, as between the defendant and society, the risk should be borne by the defendant. I respectfully think you're ignoring the fact that prisoners are part of society -- they're our fellow-citizens, albeit erring ones, and as such, we have our debts to them as well as vice versa.

There are certainly ways to manage the risk, including but not limited to (a) requiring proof of rehabilitation in proportion to the seriousness of the crime, with extraordinary offenses requiring extraordinary proof; (b) using programs like work release to provide the prisoner with a "trial run" to test how much he can really play by the rules on the outside; and (c) strict enforcement of appropriate parole conditions. But I accept that even the best-managed risks will sometimes eventuate, and I'm willing to accept that. Where we decide that a defendant isn't so irredeemable as to be executed -- and there are certainly criminals who are that irredeemable -- we owe him a chance to prove himself.

Posted by: Jonathan Edelstein | Oct 24, 2011 5:48:06 PM

Jonathan --

I wrote a long response this afternoon that the computer ate the instant I pushed the "Post" button. Aaaaargh.

So I'll just write a very, very shortened version.

We could have an entirely new system, which I will call the on-going review system. Doug and some others have discussed something like this before. Under that system, once a person comes into the criminal justice system, his case is subject to quasi-permanent on-going review. A conviction and appeal would not be the end of the story; there would be little or not principle of finality. Both his guilt vel non and his suitability for life outside of prison would be subject to constant re-examination.

But here's the other side of the coin. The Double Jeopardy Clause would go over the side of the boat as well. An erroneous acquittal would also be subject to on-going review. A sentence that proved to be too light in view of the inmate's bad behavior in prison would be subject to upward revision.

The system of on-going review has some obvious benefits, principally that it provides a greater corrective mechanism for inevitable error, one way and the other, than the system we have now. The downside, of course, is that the relatively rigid system of today provides a greater degree of finality, something that has its own virtues. It allows an already overlitigated system to turn the page and address new cases in need of initial adjudication. It also is better at allowing the parties to plan for the future knowing that something, at least, is settled.

What I am unwilling to do is have a system where the defendant gets the advantages of both systems. It strikes me as very unbalanced, for example, to allow perpetual re-examination of sentences with an eye toward releasing rehabilitated inmates without also allowing the same extended review to protect the public from unrehabilitated ones.

Obviously I haven't thought the whole thing through, and we're not about to toss the Double Jeopardy Clause in any event, but one of the advantages of being a law professor, and of talking to people like you who actually thinks carefully about these things, is that I get to do something I couldn't so much do while in the government, i.e., poke a little outside the box.

Posted by: Bill Otis | Oct 24, 2011 10:25:05 PM

Interesting. I'm not entirely opposed, in principle, to the idea of two-way "continuing review." I can think of several reasons, however, while the finality scale ought to be tilted in favor of defendants, even if not all the way.

First, we are at least notionally a society founded on individual rights, and if we want to maintain that, then the rights of individual defendants have to be accorded more importance than those of an abstraction like "society." Second, a person in prison is in a steady state while a person outside is not, and the disruption from letting a prisoner out is nowhere near as great as that from taking someone who's moved on and started a family, grabbing him ten or twenty years after the crime, and throwing him in. Third, rehabilitation is evaluated in the present while crimes are in the past, and become more difficult both to prove and to defend against as time goes on. Fourth, the individual's interest in getting out of prison is always very clear, while society's interest in putting him in (deterrence and risk of future crimes versus expected future contributions) has many more variables and becomes chaotic fairly quickly. Fifth, there's something Orwellian about the idea of "once indicted, always suspect," and I don't think many of us would like to have old charges hanging over our heads forever. Sixth, a pure "continuing review" system would actually favor convicted criminals in some ways -- a convict would do his time and get it over with, while an acquitted defendant would potentially be in limbo forever.

Still, as I said, I'm not entirely opposed in principle. There are ways to manage the risks -- for instance, allowing a renewed prosecution only if significant new evidence is discovered within a certain time. Or maybe there could be one round of appellate review of an acquittal as there is in Europe, with the appellate court's primary function as to both parties being re-examination of the facts rather than review of procedures. (The latter would probably have to come in combination with a shift to a more inquisitorial criminal justice system, with the courts' function being to determine what happened rather than to ensure a fair adversarial playing field, and with judges far more active in both the investigation of the case and the presentation of evidence. Which comes with its own risks and rewards, but I digress.)

Another trade-off that has sometimes been suggested, and which I'd support somewhat more than two-way continuing review, is a multi-tiered hierarchy of appellate and collateral review, with greater or lesser attention given to claims depending on their relevance to innocence. A direct actual-innocence claim, for instance, could be heard any time, without procedural bars. Claims that don't directly prove innocence but are highly significant to the truth-finding determination -- e.g., suppressed Brady material, faulty eyewitness identifications in a case resting primarily on same, etc. -- would face a few barriers but would still be liberally allowed. On the other hand, claims with only tangential relevance to innocence would face strict procedural prerequisites, and those with no relevance to innocence (e.g., violation of the right to a public trial) would not be allowed at all after the first stage of appeals, and possibly not even then. I think that could be made workable in some respect, in combination with a more dynamic ongoing review of rehabilitation. Your mileage may vary.

Posted by: Jonathan Edelstein | Oct 25, 2011 8:28:36 AM

I think most of these recent articles about aging life/LWOP sentenced defendants are focused on a population much larger than those sentenced to LWOP for capital murder. As Ala JD, points out, it is really this vast segment of those serving life/LWOP for lesser crimes (not non-serious, but lesser, in the sense of not as maximally serious as capital murder) that are at issue.

Is it consistent with either retribution/punishment or societal utility to warehouse until death folks who committed a robbery/burglary/sexual assault, or even a non-capital murder, in their teens, 20s or 30s? That seems to be the question that is bubbling to the surface.

Posted by: Anon | Oct 25, 2011 12:41:23 PM

Johathan --

There is much food for thought in your note. I don't know that what I have to say is fully responsive, but I'll take a crack.

As I see it, we can choose between two possible basic paradigms. One is the get-it-right system. Its rationale is that the No. 1 job is, not to put too fine a point on it, to get it right. That means that guilty people get convicted and innocent ones get freed. It depends on the assumption, which I make because it's borne out by experience, that we can pretty reliably distinguish between the two. Its modus operandi would be the continuing review model, which is needed because of the well known truth that human beings err, but are much more likely to get it right if they are willing to re-visit their initial outcome.

Because of the number of appeals and various forms of collateral review already available, defendants already get the benefit of this system, but to a limited degree. Because of the DJC, the prosecution almost never gets the benefit of it.

If we're going to have this system, both sides would get more of what they lack now. Defendants would get the benefit of coninuing review of factual innocence claims, something that is both obviously extremely important in a get-it-right system and not really available now except by the rarely used route of executive clemency.

What the government would get is repeal of the DJC. The arguments against this are the ones you noted; the Framers intended to shield the citizenry from being hounded by the state. But my view is that some citizens SHOULD be hounded by the state, e.g., Casey Anthony, who otherwise is going permanently to get away with having killed her kid. Her case was a miscarriage of justice, and there is no reason written in the sky that we must live with it.

The value of rectifying that injustice is concrete, while the notion of its being a manifestation of unchained state power is, as you might put it, largely an abstraction. I also think that the prospect of being hounded by the state through malicious second and subsequent prosecutions is, in the present day, far less than it was in the days of the Crown's rule over the colonies (although it can't be dismissed either).

I'll continue this in the next post. This one is getting too long.

Posted by: Bill Otis | Oct 26, 2011 9:37:38 AM

Jonathan --

To continue:

The second paradigm we might adopt is the justice-as-a-commodity system. The unhappy fact is that justice is, in fact, a commodity, in the sense that it costs money and, for its production, requires the investment of prodigious amounts of resources.

What this means is that we're going to have to deal with central fact of commodities, and economics generally: scarcity.

We are already experiencing this, as is evident everywhere on this board. The real question nowadays is not how much review we're going to add. The question is how much we're going to subtract. It's also how much imprisonment we're going to subtract -- and how much in rehabilitative services, re-entry programs, vocational training and a whole bunch of stuff the liberal side tends to like. It's not just prison that's going to get whittled down. We have been overspending on every domestic program in sight, and the bill has come due. It's all going to be on the chopping block.

All of life is a trade-off, and justice is no exception. The get-it-right system I discussed before is also, unfortunately, the more expensive system. The more review you have, the more dollars you spend. The trade-off in the age of scarcity is how much of getting it right we're going to sacrifice.

It seems to me that the natural candidates for sacrifice are the least efficient aspects of what we're doing now, i.e., where we're getting the least bang for the buck.

To me, the culprit is obvious: The years and years of repetitive appeals, particularly in DP cases. Litigation is one of the most costly aspects of the system, if not the most costly, and is thus a promising place to look for cutbacks. In addition, in litigation as elsewhere, there are diminishing returns to scale. The last dollar spent is very likely to get you much less of value than the first (or the first few thousand).

There is one aspect of the system that has been extremely effective, however: prison. As I have noted elsewhere on this blog, and in a piece I recently did on Crime and Consequences, prison has been a tremendous investment. As best I can figure it, the growth of "Incarceration Nation" has resulted in a massive decline in crime -- crime that exacts its own very substantial human and economic costs. The growth in the prison population has resulted in a quarter of the overall 45% reduction in the crime rate over the last two decades, according to the most informed studies. Since there were four and a-half million fewer crimes last year than there were in 1991, 20 years ago, that means that the growth of imprisonment saved more than a million serious crimes last year alone. To me, that is a mind-boggling achievement, and the last thing to throw over the side of the boat in the age of parsimony.

But still: While the justice-as-a-commodity system may well be the wave of the forseeable future, I'm troubled by it. To me, it seems bloodless, wrong and counterintuitive. When I was a federal prosecutor -- now 12 years ago -- I never thought of myself as dealing in a commodity. Perhaps I should have, because everything I did cost tax dollars, but I didn't. I thought of myself solely as operating in the get-it-right mode.

As we head for the painful choices that lie ahead, nuanced and refined thinking of the sort reflected in your post is going to be needed. I don't agree with all your specific points, and I might take them up later, but for now I wanted to spell out the systemic alternatives I think we'll be facing.

Posted by: Bill Otis | Oct 26, 2011 10:21:42 AM

It has been a long time since I visited this blog and it's amusing to see all of the usual suspects at play.

The lens though which I see this issue is that of truth-seeking. One of the fundamental realities is what mode of truth-seeking we are in. The legal form of truth-seeking whose primary focus is on an adversarial mode is quite different than a scientific form of truth seeking which focuses on collaboration and peer review which again is yet different than a psychological/philosophical mode of truth seeking whose foci are introspection and imagination which again is yet different than a religious mode of truth seeking whose foci are tradition and revelation.

The problem becomes when these different modes of truth seeking collide with one another in a court of law in a democratic society. While Bill's touchy-feely statement about "get it right" has resonance for me the key question is get it right according to whom. The shaken baby case is a good example of that. It's entirely possible for something to be legally correct and yet scientifically false. Some people will find that statement troublesome but it's an /inevitable/ consequence of the fact that law and science operate under different processes of truth-seeking. It's quite frequent for science to go "yikes, got it wrong!" but no scientist has a person locked in a cage for the rest of his natural life. No scientist is politically responsible if a murderer walks free to harm again.

I held this position when I posted here in the past and I'll hold it again now. We must grow more comfortable with a certain level of error in the system, with a certain level of randomness, entropy, and yes even arbitrariness. So my response is to the cost/benefit analysis is that I agree with Bill that we should be in "get it right" mode but recognize that get it right is never 100% and rather be aiming for 90%. Because lets be honest much of the cost of the legal system is in that final 10%.

The difficulty is that as soon as I say that I know that there will be some people who will try to twist that statement in their favor and insists that we error on the side of 'caution' with caution being defined as whatever pet political agenda they have. For me, Casey Anthony is "actually innocent" in a legal sense. She is as innocent as we could uncover under our legal form of truth seeking just as much as the grandmother in the shaken baby case is as "actually guilty" under our legal form of truth seeking. Such judgments may be different under different modes of truth seeking but those, I remind, are not the civil law.

Posted by: Daniel | Oct 31, 2011 6:05:24 PM

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