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 premises 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 has 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’re 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 was 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.

20 And Out curated from Simple Justice