Expensive and Immoral: The Case for Sentencing Reform

When we do the right thing for the wrong reason, does it still count as the right thing?

On February 27, the New York Times’ Erik Eckholm reported on California’s progress toward undoing some of the damage caused by the state’s notorious three-strikes law. The three-strikes law, which mandated lifelong prison sentences for repeat offenses—even when the final strike was a relatively minor one—made California a pioneer of the tough-on-crime ethos of the 1990s. It also flooded the state’s prison system with inmates that it didn’t have the space or money to hold.

This argument—that California couldn’t afford to house so many prisoners—became the oft-repeated talking point used by people opposed to the three-strikes law. In 2012, California voters approved a relatively minor tweak to the law, allowing prisoners to be resentenced if their third strike was nonviolent and they weren’t deemed a safety risk. So far, Eckholm reports, more than 2,000 such prisoners have been released, and, in line with expert predictions, have not committed new crimes in significant numbers.

As his central example, Eckholm referred to a particular judge and how he justified his decision to resentence an inmate:

A large share of the resentencing cases were filed in Los Angeles County Superior Court, where one judge, William C. Ryan, has decided the fates of about 600 prisoners so far. He has turned down eight who were otherwise eligible for resentencing, he said.

“A few of them look like out-and-out sociopaths to me,” Judge Ryan said in an interview. But in most cases, after considering the inmates’ ages, their behavior in prison and the support awaiting them, he is willing to take the chance.

“I’m not sure the taxpayers need to spend $45,000 a year on these guys if they are not dangerous,” he said.

As Judge Ryan points out, it is indeed true that housing record numbers of prisoners for long periods of time is financially unsustainable. But is it morally unsustainable, as well?

Rarely do you hear elected judges, prosecutors, and legislators speak openly about the immorality of locking people up for unconscionable terms. These officials fear, perhaps not inaccurately, that talking about releasing prisoners on moral grounds is a riskier prospect than couching their arguments in financial language. The financial argument frames the issue as benefiting the public rather than the criminal.

But if elected officials can’t speak to the immorality of imprisoning people for decades when much shorter sentences would suffice, that puts the burden on journalists to raise the issue.

Steve Bogira issued such a challenge to journalists recently in this oft-tweeted essay, in which he called for the media to run more stories that address the questionable treatment not just of nonviolent drug offenders or the wrongly convicted, but also of those who are clearly guilty of violent offenses. In the punitive world of the American justice system, the plight of violent criminals is not something we often hear about. But perhaps we should.

For decades, the politics of fear and revenge have turned 5-year sentences into 25-year ones, and 20-year sentences into life without parole. “Forever” became the only politically acceptable answer to how long we must punish people who commit a wide range of crimes. For too long, news coverage of crime and criminal justice policy has peddled scare stories despite steep declines in crime overall, all while averting its gaze from the big questions staring us in the face about how much punishment is too much.

Too few want to talk about these less-attractive, less-sympathetic prisoners. But when we know for a fact that we can release many more prisoners without undue threats to safety, let’s be honest enough and decent enough to examine the ethics of imprisoning them for far longer than we should. These wrongs have cost us more than just money.