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February 11, 2019

Making sure we do not lose sight of the "American epidemic of overly long prison sentences"

Late last week, Judge Morris Hoffman penned this notable Wall Street Journal essay headlined "A Judge on the Injustice of America’s Extreme Prison Sentences: The duty to punish criminals comes with an obligation not to punish them more than they deserve." I recommend the piece in full, and here are excerpts:

Many people have celebrated Congress’s recent passage of the First Step Act, which, among other things, retroactively reduced penalties for some federal drug offenses.  But it did very little to address the American epidemic of overly long prison sentences.  Today, we lead the Western world in average length of prison sentences, at 63 months. According to the Justice Policy Institute, Canada’s average is four months, Finland’s 10, Germany’s 12 and even rugged, individualistic Australia’s is just 36.

These numbers are even more striking considering that the modern prison is an American invention and the average sentence started out at a few months, not years.  The Quakers invented prisons in the late 1700s as a more humane alternative to death or banishment, then the punishments for virtually all serious crimes.  But the penitentiary wasn’t intended to be a criminal warehouse.  Criminals were expected to work, pray and think about their crimes — to be penitent about them — in a kind of moral rehabilitation.

Virtually every new American state that adopted this form of punishment soon passed laws requiring confinement to include hard labor, but for short durations.  A 1785 New York statute was typical: It limited all nonhomicide prison sentences to six months.  Alexis de Tocqueville, whose visits to America began with a tour of U.S. prisons in 1831, wrote, “In no country is criminal justice administered with more mildness than in the United States.”  But over the next 150 years, America went from mildest punisher to harshest.  The reasons for this shift are complicated, but they include a dash of progressive naiveté, a bit of blind faith in the power of deterrence and large dollops of political neglect.....

[T]the relationship between longer sentences and falling crime rates is complex and nonlinear.  At some point, crime rates become unresponsive to increased punishment. If we sentenced aggravated robbers to 70 years, then increased that to 80, not even the most committed believer in deterrence would expect those additional 10 years to further reduce robberies.  The enormous leverage of prosecutors in plea bargaining is undoubtedly a factor in the explosion of sentence lengths.  But the real problem is the sentence ranges created by legislatures, not the particular sentences within those ranges imposed by judges or driven by plea bargains.

Don’t get me wrong. I’m not one of those apologists who thinks that criminal law is fundamentally immoral or that a bad environment excuses bad actions. I am what we in the business call a “retributivist.” I don’t punish people primarily to cure them or to deter others. I punish them mainly because those who intentionally harm others deserve to be punished, in no small part to earn their way back into the social fold.

But if retribution offers a moral justification for punishment, it also imposes limits. W e have a duty to punish wrongdoers, but that duty comes with the obligation not to punish criminals more than they deserve. Much of our criminal-justice system has lost that moral grounding, and our use of prisons has become extreme.  We dishonor victims of crimes that merit severe punishment when we sentence less serious crimes just as harshly.  What do I tell the surviving relatives of a victim of second-degree murder when they see her killer sentenced to less time than someone who robbed a crowded restaurant?...

It won’t be easy. No one gets elected by calling for shorter prison sentences.  Critics will warn that releasing prisoners earlier is unsafe, and in some cases it would be.  But as a policy matter, there is simply no evidence that, say, a 70-year sentence for aggravated robbery does more than a 30-year one to deter other potential robbers.  Moreover, violent crime rates decrease rapidly as criminals age out of their 20s.  Releasing a middle-aged prisoner earlier does pose more risk, of course, than keeping him behind bars, but that marginal danger will be very small indeed when we are comparing 30- and 70-year sentences....

As state and federal legislators ponder their next moves after the First Step Act, they should consider lowering historically extreme sentences for some offenses, including violent ones.  It would not only be sensible public policy but would also help return our criminal law to its moral roots.

February 11, 2019 at 05:18 PM | Permalink

Comments

In my state (Iowa) the original maximum sentences were supposed to be proportional to the severity of the crime. However, that was in 1978 after eight years of work on revising the criminal code. That was a an example of a deliberative process.

What has happened to penalties since then is that proportionality was thrown out with the trash and the police and county attorneys keep asking for penalty enhancements without effective opposition so they often get what they ask for. In many cases where excessive penalties were adopted the public was outraged over a high profile case and it was not a deliberative process.

The need a cooling off period before they alter a penalty.

Posted by: John Neff | Feb 12, 2019 1:44:51 PM

What is needed is some common sense! The very worst crime is mass murder and that should be immediate death sentence. Murder is a very bad crime but each case needs to be prosecuted on it's own merits.

Judges & Jury's dishing out hundreds of years punishment is ridiculous and incompetent. Make the punishment fit the crime!

Posted by: LC in Texas | Feb 13, 2019 6:24:56 PM

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