On July 7, 1967, "J.R." inadvertently shot and killed a bystander when the gun he was using to rob someone went off in a scuffle. He was convicted of first degree murder and sentenced to life in prison, where he likely would have remained, despite several parole recommendations that were rejected by the governor at the time, if not for a legal technicality that resulted in his recent release after 45 years in prison.
Did J.R. need to be in prison that long? Research has shown that the great majority of criminals commit all manner of crimes when they are relatively young (J.R. was 22 when he committed his crime), but that they "age out" of illegal activity before middle age, meaning that long sentences do little to prevent crime. Further, criminal careers do not last very long: Five to 10 years is the typical duration, with property crimes typically ending when criminals reach their 20s, violent crimes ending when defendants are in their early 30s and drug offenses ending when individuals are in their mid-30s.
Despite this data, the average length of prison sentences in our country has been steadily increasing. Since 1990, the state and federal prison population over the age of 55 has increased by 550 percent, and along with it the cost of health care for inmates, now $4 billion annually. As noted by the National Research Council, given the sharp decline in recidivism rates as offenders age, lengthy prison sentences, except for the most dangerous offenders, are an inefficient approach to preventing crime. A prison sentence that outlasts an offender's desire or ability to break the law is a tremendous drain on government's limited financial resources, does little to protect the public and fails to improve an inmate's chances of success after release.
The concept of punishment is as old as civilization, but why we punish is a more complicated question, engendering any number of explanations. Certainly, we punish defendants for their criminal transgressions to deter both them and others from committing offenses in the future. Retribution also plays a large role in any discussion of punishment, particularly for the victims of crime and their families and friends.
But how much punishment is enough? We do not deter the individual defendant from future criminal activity if he or she is incarcerated for a lengthy sentence except to the extent that they are separated from the public. And the data is inconclusive as to whether such sentences deter others. We have moved from a rehabilitative era to a retributive era where individuals are sentenced for mostly punitive reasons and are simply warehoused until their sentence is over, which explains why the recidivism rate is so high.
Why not a system advocated by groups like the Sentencing Project in testimony before a congressional task force recently that there be a 20-year cap on the length of federal sentences with power in the parole board or even a judge to later add additional time in smaller increments if the defendant is still deemed a danger to the public? While there certainly would be debate as to whether the suggested cap is too low (some might argue it is too high), the money saved by this approach would be substantial, and could be used for meaningful educational and vocational programs in the prisons. Such programs are almost non-existent today and would go a long way toward putting inmates in a much better position to survive on the outside and not re-offend — not to mention substantially reduce our already overburdened prisons.
The United States has the highest incarceration rate of any developed country, and the average length of sentences is extraordinarily long compared with other Western countries, leading to prison overcrowding. Such lengthy sentences have not been shown to be a driver of crime reduction, but they have created a class of individuals who, once released, are unable to readjust to the world and end up re-offending.
Incarceration, generally, may reduce crime, but there is a point of diminishing returns as inmates age. And while there are a few who, because of their innate violent tendencies, should never be released, it is time to start thinking about a different approach for the vast majority of those who are sentenced to prison and to develop an evidence-based system that is parsimonious and more accurately takes into account their potential future danger to the public and gets them the training and education they need to succeed.
A reduction in excessive sentences has a better chance of reducing crime and protecting the public, while continuing to recognize and acknowledge the important rights of victims and their families.
Gregg Bernstein is a partner at Zuckerman Spaeder LLP and a former Baltimore City state's attorney. His email is gbernstein@zuckerman.com.