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Monday, July 13, 2009

The Rule of 10

I started last week with the proposition that sentences for violent crime are too long and that overly long sentences for the violent anchors a system of mass imprisonment.  I want to come back later to the dynamics that might explain how fear of violence generates support for incarcerating the disorderly, but for now I want to raise a more provocative point.  How long should prison sentences be for violent crime?  I do not have an answer, but I do I have a hunch I'd love to get some reaction to, it is what I'll call, the rule of 10.  Putting aside what to do with violent recidivists (a person who serves a lengthy prison term for a violent crime and then commits another such crime on release), and the kinds of especially heinous murders that are sometimes still punished with death in the United States, persons convicted of willful injury (or even killing) another, should generally be released after not  more than 10 years of imprisonment. (I'll reserve for now the question of whether indeterminacy could be built into that to prevent the release of those prisoners who seem to pose a particularly extended risk given their behavior in prison).

I take it that none of the major modern theories of punishment are practically capable of limiting punishment, especially for those crimes most subject to fear and populist punitiveness.  They may help us decide that burglary should be punished less than robbery, which should be punished less than willfull homicide, but not how long the murderer should serve.  We need external and therefore inevitably somewhat arbitrary limits.  My intuition behind the rule of 10 are these  (but I want to be transparent that the goal is to substantially reduce the overall length of prison sentences for violent crime, and therefore for all crime),

  • 10 years fits the most common frame that we apply to our own life course.  We regularly speak about ourselves in terms of  our 30s, our 40s, 50s, etc.  Anticipating the loss of one of those decades to imprisonment should provide as potent a signal of the cost paid for crime for deterrence and retributive purposes, as any other arbitrary number.  Sentencing someone to 20, 30, or 40 years in prison only underscores that decanal power but with little additional substance phenomenologically.
  • Most criminological research on the life course shows criminal activity falling off sharply in the 30s and largely vanishing after 40.  Most crimes of violence are committed by people in their 20s, which means 10 years in prison will have them released well into this process of desistance through aging, providing substantial incapacitative benefit net of any additional recidivism reductions through rehabilitation.
  • An old bit of British penological wisdom had it that convicted murderers whose mandatory (until 1957) death sentence had been commuted to life in prison should in fact be released within 10 years.  British prison wardens believed that after 10 years prisoners  begin to degenerate mentally in ways that make them difficult to manage in prison and less capable of adjusting back into society.  I'm frankly not sure how this holds up to contemporary psychological studies of lengthy imprisonment, but it sounds reasonable to me.  Given the fact that many of our contemporary prisons have fewer work, education, or treatment options than was true a generation ago, I fear that 10 years of warehouse imprisonment may be even more destructive than this old Home Office observation suggests.

Posted by Jonathan Simon on July 13, 2009 at 12:57 PM | Permalink


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Recent research from Carnegie Mellon sheds light on the related question of how long released felons are at an elevated risk of arrest. Someone released after a conviction for burglary or simple assault, for example, who stays clean for four years poses no more risk than the general population, while someone released for robbery poses a risk for another seven and a half years.

In the immediate post-recidivism period, empirically, there are a variety of predictors: such as the length of sentence, disciplinary issues while serving time, the offender's age, the offense of conviction, the offender's skills and education, and the existence of untreated substance abuse and mental health problems.

With regard to offense of conviction, the most obvious conclusion is that offenses that made up the offender's livelihood, like burglary and drug dealing, had higher reoffense rating than offenses associated with impulsivity, like heat of passion murder and assaults, that tend to wane with age and an often long prison sentence.

Still, upon release, almost all felons pose an extremely elevated risk of reoffense ot the general public. One in three to one half of released felons reoffend.

The literature is rather thin on the question of how offense of conviction influences the nature of recidvist offense.

The downside risk of a recidivist non-violent property crime is pretty modest -- the average lost for bank robbery is about $5,000 per incident, and the typically non-violent felony property crime involves an even smaller loss -- moreover the losses that do occur are often socialized through insurance so they are property seen more at a level of societal economic loss than personal ruin to an individual.

The prevailing wisdom is that keeping a marginal drug dealer from plying his trade has very little impact at all on how many illegal drug deals take place -- another dealer usually picks up the business the convict loses.

If a third of economic crime offenders reoffend with non-violent economic crimes, this may be tolerable. We are as a society avoiding the cost of imprisoning the two-thirds who don't and receiving the fruits of their labors in our economy, and the downside loss for those who do reoffend may be modest.

In contrast, the downside of a recidvist violent crime can be very high, and is far less easily reduced to a matter money that can be insured against. Even if only 20% of violent offenders reoffend, but they reoffend with violent crimes, that is a much more serious matter. So, to the extent that longer periods of incarceration reduce recidivism, and on average they do, imprisoning violent felons for long periods of time may make sense.

The problem of distinguishing between low threat and high threat offenders, is more of a problem than long sentences for serious violent crime offenders.

Posted by: ohwilleke | Jul 13, 2009 1:32:40 PM

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