How Much Is Enough?

Posted in: Criminal Law

In my last essay, I wrote about the challenge of reconciling the visceral desire for extreme punishment after a truly horrific crime, and the sober truth that as a rule, sentences longer than 20 years are needlessly cruel. People age out of crime, and draconian sentences are not only a major driver of mass incarceration, they exacerbate racial disparities in the criminal legal system. Everything we know about excessively long sentences tells us they are pointless except in the rarest of case. Yet everything we feel about the most serious offenses tells us (or at least, tells some people) that 20 years’ punishment does not fit the crime.

Unfortunately, the obvious response to this conundrum—to cap prison sentences at 20 years except for the proverbial worst of the worst—isn’t likely to work. As I explained in my earlier essay, once you allow legislators or judges to pierce the ceiling, the exception will swallow the rule. Few officials will have the political courage to say, “This person who murdered a woman deserves a sentence in excess of 20 years, but this person who raped three women does not.”

The occasion for my essay was an excellent new report by The Sentencing Project in support of their campaign to cap all prison terms at 20 years, a campaign I have supported for years. The report assembles the latest and best research against excessive sentences and proposes seven legislative reforms that will right-size punishment in America. The Sentencing Project recognizes the dilemma I described and accepts that in the very rare case, a sentence in excess of 20 years may be justified. But what is that rare case, how do we identify it, and how do you preserve the rule once you open Pandora’s Box? Once again, TSP charts the right course.

In looking for a solution to the puzzle, The Sentencing Project notes the preventive detention regimes in several countries outside the United States, where excessive sentences are generally disallowed, but where judges can make an exception and specify a longer term of imprisonment at the time of sentencing. Though TSP notes this model, they wisely do not endorse it and neither do I. The tendency for judges to impose long prison terms would simply be too great, either because a judge bowed to political pressure or because they sincerely believed the facts of the crime alone allowed them to predict with certainty that a particular defendant would continue to be dangerous. Over time, those predictions would be poisoned by our implicit and explicit biases against the poor and people of color, and before long, we would have recreated the system we are trying to dismantle.

This is why I believe, with The Sentencing Project, that the only condition that justifies a sentence longer than 20 years is an ongoing threat to public safety, to be determined after that sentence has been served. Only when we can reliably and objectively predict that a person will continue to be a danger to the public can society justify incarceration beyond 20 years. Long-term incarceration should be based on a prediction about the future, not a judgment about the past.

And if such a system were administered honestly and fairly—an exceedingly important caveat—very few people would be held beyond two decades. Some people may balk at this prediction. They might feel intuitively that people who commit the most serious crimes will always be violent. In fact, however, there is very little correlation between the severity of the crime and the likelihood that a person will turn the corner in prison. Indeed, to the extent there is a relationship, it is the opposite of what many people expect. Those who have committed the most serious offenses are generally the ones who most thoroughly repudiate their past. In part, this is a product of time. People age out of crime, and violence in particular is a young man’s folly. By the time they reach their 50s, people are simply less likely to be violent. This is a key justification for The Sentencing Project’s campaign: as a rule, concerns about public safety simply do not warrant excessively long sentences.

But more than the mere passage of time, violence in the United States is exquisitely situational. Most violence that leads to a term of imprisonment is typically committed by young men between the ages of 15-24, who act in response to real or perceived threats or provocations, usually by other young men. Yet both the perception that they have been wronged, and the conclusion that violence is the only rational response depend heavily on a young person’s immersion in an environment that normalizes violence—as, for instance, a member of a street gang or a person radicalized online.

Indeed, a primary goal of violence prevention programs is to break this cultural hold on a young person’s thinking by encouraging an alternative way of viewing and relating to the world. As the Centers for Disease Control described in 2016, this is achieved in practice by: promoting a healthy and supportive family environment; providing quality early education; strengthening youths’ skills and connecting them to caring adults and pro-social activities; creating protective environments in the community; reducing exposure to community-level risks; and intervening early to reduce harms.

Though no one sensibly thinks that prison is the best place to achieve this reorientation, the fact is that it can and does happen behind bars. This is emphatically not a defense of draconian sentences, but as a result of these long sentences, there are a great many people in prison who act as mentors for younger inmates. They teach life skills, provide an education, create protective environments, help reduce risks—in short, do the sort of things that the CDC recommends to break a young person’s attachment to violence.

I have written before about Dante Owens, for instance, who is serving three consecutive life sentences in Colorado and who has become a model prisoner. In the past couple years, he and other men at Sterling Correctional Facility have started a resident-led education and reentry program. They prepare younger residents for their GED exam and offer classes in everything from anger management to problem-solving through positive thinking, and in that way ready them for a reentry that most of the mentors will never experience. I will write about this program in future essays, but for now, it is enough to repeat what Dante told me when I spoke with him recently: “I think I was put here to help these guys. This is what I was made for.” Dante may never get out but he can give back. I have heard many people, inside and out, describe this same role for “the old guys.”

And I am certainly not the first to notice this mentoring. Kathy Boudin, who knew a thing or two about long sentences, may have expressed it best when she wrote this about people convicted of murder:

These people are called longtermers, also referred to as lifers in some states. They have picked themselves up after they have landed in prison—after the scattering of their lives, and the harm they did to others. Many longtermers look ahead to more years in prison than they had previously lived, yet they learn to move forward. The longtermers often become teachers, nurses, cooks, or group facilitators of parenting classes or pre-release services. Not only do they learn how to survive prison, but their survival often involves helping others. By demonstrating that they have survived in prison and developed meaning for their lives, the longtermers give newcomers hope.

In short, the fact is that people convicted of some of the most serious offenses, and who have already served exceptionally long terms, are generally the people who are most apt to be valuable and contributing members of society, and who are best prepared for freedom. Their continued detention is a moral tragedy and a great loss for their family and community.


As I often tell my students, important questions do not have simple answers. Nowhere is this truer than in the criminal legal system, where the challenge emerges from the perennially futile struggle to reconcile rage and reason, fear and redemption. I understand and respect the urge to punish great violence severely. And I confess I did not lose a lot of sleep after a South Carolina judge sentenced Alex Murdaugh to consecutive life sentences for the murder of his wife and son. But at the root of the impulse to cast out is the dangerous conceit that some among us do not deserve to be treated as human beings—a conceit that will be enforced most enthusiastically against the weak, the poor, the forgotten, Alex Murdaugh notwithstanding. We lose something precious if we allow this conceit to become policy. Except in the rarest case, 20 years is enough.

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