The Hardest Question

Posted in: Criminal Law

Last Wednesday, I received a copy of a new report by The Sentencing Project in support of their longstanding campaign to reduce the maximum prison sentence in the United States to 20 years. The report opens with these words:

Capping sentences for the most serious offenses at 20 years and shifting sentences for all other offenses proportionately downward, including by decriminalizing some acts, is a vital decarceration strategy to arrive at a system that values human dignity and prioritizes racial equity.

Later the same day, Erie County (NY) Judge Susan Eagan sentenced Payton Gendron to ten concurrent life sentences for his murderous rampage at a Buffalo grocery store, plus another 25 years for three counts of attempted murder, to be served consecutively. At sentencing, Eagan told Gendron:

There is no place for you or your ignorant, hateful and evil ideologies in a civilized society. There can be no mercy for you. No understanding. No second chances. The damage you have caused is too great. And the people you have hurt are too valuable to this community. You will never see the light of day as a free man ever again.

For those of us committed to reform or abolition of the carceral state, this is the hardest and most important question we face: What happens if the first of these statements is true but the second is irresistible?


I have supported The Sentencing Project’s campaign for years, and their new report, “Counting Down: Paths to a 20-year Maximum Prison Sentence,” is exceptionally well done. Every assertion of fact is supported by the best and most rigorous research. In clear, direct prose, the authors—Liz Komar, Ashley Nellis, and Kristen Budd—marshal the abundant evidence that sentences longer than 20 years are, as a rule, penologically excessive and racially unjust.

It is the disparate racial impact that has always infuriated me, an impact that mocks our pretenses to equal justice. To spend time in a maximum-security prison in this country is to spend time surrounded by Black and Brown men. As the authors point out, one in seven prisoners in the United States are serving life sentences, and two-thirds of them are people of color. The facts of the crime and the criminal history of the offender cannot adequately explain this disparity; all things being equal, people of color are sentenced more severely than Whites.

Yet if the racial imbalance strikes you on sight, the full weight of the moral tragedy does not hit you until you spend time with the people serving draconian sentences. For it is only by listening that you can grasp, however imperfectly, what it means to be entombed in your past. We know that people age out of crime, but you really cannot know what that means until you sit with someone who would give anything in the world to undo the pain they have caused and the harm they have done. People whose only wish is that the world might see them as they are and not as they were—a wish insistently, angrily, perennially denied by an unforgiving society.

And the authors of Counting Down do not merely state the problem; they propose seven legislative reforms that, taken together, will, as they say, “cap sentences at 20 years and right-size the sentencing structure”:

  • Abolish death and life without parole (LWOP) sentences, limiting maximum sentences to 20 years.
  • Limit murder statutes to intentional killings, excluding offenses such as felony murder, and reduce homicide penalties.
  • Eliminate mandatory minimum sentences and reform sentencing guidelines so judges can consider mitigating circumstances.
  • Provide universal access to timely parole.
  • Eliminate consecutive sentences and limit sentence enhancements.
  • Create an opportunity for judicial “second look” resentencing within a maximum of 10 years of imprisonment, regardless of the offense.
  • Shift all sentences downward, including by de-felonizing many offenses and decriminalizing many misdemeanors.

So far as I am aware, The Sentencing Project is the only major criminal justice organization courageous enough to call for a 20-year cap on prison terms and we are all in their debt. From the minute it appeared, Counting Down became the go-to source for argument and research in support of this vital and morally urgent campaign.


And yet…

As I was reading the new report, Judge Eagan was sentencing Payton Gendron to die in prison. As I wrote recently in Public Square Magazine, we can hardly fathom the great pain Gendron caused, “a purposeful and pointless misery that carves an emptiness that time will never fill.” A misery made even more egregious when we know it was animated by racial hatred.

How do we reconcile the sober truth expressed by The Sentencing Project with our fury at Payton Gendron?

This is the hardest question because it cannot be avoided. We cannot, in other words, cleave off cases like Gendron’s and say, “He gets a life sentence but nobody else.” At least, we can’t if we hope to preserve the rule. You might think this is preposterous and that the law can easily recognize the moral difference between someone who murders ten people and someone who commits other crimes, even other crimes of violence. In practice, however, I fear the distinction would be impossible to sustain.

Suppose, for instance, you announced in advance that you would support a sentence in excess of 20 years only in the case of mass murder. What political basis enables you to hold the line? I’m not asking you to identify a factual or philosophical basis. We can all do that; Gendron’s crime is concededly egregious and extreme. I’m asking what argument will successfully resist the political pressure to expand the category. Gendron was sentenced to 10 concurrent life sentences, one for each murder (in other states, these sentences would likely have been imposed consecutively). If each murder warrants a life sentence when there is more than one, how do you resist the political argument that every murder warrants a life sentence, even if there is only one?

And once you accept that legislators can pierce the ceiling in an “appropriate” case, how do you contain it? What argument allows you to retain the rule in the case of, for instance, the sexual assault of a child? A sexual assault accompanied by violence? The third or fourth violent felony? Again, I’m not asking if you can identify a moral or factual difference between these cases and Gendron’s. I’m asking you to predict how politicians will respond to the opening created by the exception. Everything we know about the way crime is weaponized in this country tells me that once you permit exceptions, the game is up.

This in fact is why the Supreme Court has interpreted the Eighth Amendment Cruel and Unusual Punishments Clause to limit capital punishment to those who have committed or culpably participated in a murder. The Court understands that if we allow the State to kill someone for a crime that did not result in death, there is no principled way to prevent legislators from imposing death for a whole host of objectively less serious crimes. And if the Court opened that door, we know perfectly well who would be pushed through. Prior to 1972, the Supreme Court allowed the death penalty for the rape of an adult woman. But between 1930 and 1972, nearly 90 percent of the people executed for rape were Black. At least as far as careful research has disclosed, “no White man has ever been executed in the U.S. for the non-homicide rape of a black woman or child.” In short, our sense for what is truly egregious tends to overlap with our biases about Blackness, which is part of the reason why people of color are consistently sentenced more severely than Whites.

And so, we are left without a solution to the puzzle: We know that sentences longer than 20 years are, as a rule, pointlessly cruel and unjust. They keep people in who should be out, perpetuate racial bias, and are a major driver of mass incarceration. We also know that if we make an exception for those we imagine as the worst of the worst, before long we will have recreated the world we are trying to dismantle. Yet for many people, the sense of moral outrage at crimes like those of Payton Gendron makes them cringe at the thought that he would be released when he is only 38 years old, still half the age of his youngest victim.

In my next essay, I will share my solution to this conundrum.

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