It's hardly news by now that I oppose the proposed mass sentencing reduction -- for both garden-variety drug dealers and classic violent criminals -- that goes under the deliberately vague name of sentencing "reform."
My view is a minority among academia-oriented and think-tank culture that dominates inside the Beltway. In the interest of robust debate, I want to present the other side of the story from Prof. Frank Bowman, a friend of mine from many years ago, when we worked together on the Attorney General's Advisory Subcommittee on sentencing. This was back in the mid- and late 1980's, at the dawn of the Sentencing Reform Act of 1984.
Frank is one of the leading experts in the country on federal sentencing policy. Although we now see things differently on that score, I am pleased that Frank gave me permission to re-print a note he sent me in response to yesterday's Slate article profiling my efforts in this area.
Frank observes:
I'm pretty well into the "it's gone too far" camp. Perfectly happy to incarcerate the violent, moderately ambitious thieves, white collar crooks (particularly), drug traffickers if sufficiently high in the distribution chain, and some others. After all, I devoted a lot of years to putting people in the slam. But I've come to think we incarcerate a fair number of people who don't really need to be locked up to promote public safety. When we lock someone up, whether they deserve it or not, the effect on that person's life and those in his immediate circle of family and dependents is pretty terrible. If we lock someone up who doesn't need to be there, that's a lot of human pain and economic waste for no societal gain.Perhaps even more compelling to me is the idea that, even for many who should be locked up in the first instance, we go WAY overboard in sentence length. I don't know if you've visited any prisons lately. If you haven't, particularly given your national prominence on this issue, you should. I took my sentencing class to the Missouri state prison last semester and was reminded visually of what I know statistically - namely that a stunningly high percentage of the inmates are old. Not necessarily hobbling-around-the-geriatric-ward-on-walkers old (though there are far too many of those), but well into late middle age or older.Some of those folks should, perhaps, be held there for life on pure retributive grounds if they committed first degree murder or some other inexpiably heinous offense. But otherwise, holding people (at least those who have served a solid chunk of time) into their fifties and beyond makes very little economic or human sense. We know that the recividism rate for these age cohorts is negligible (not zero, of course, but negligible) for any crime we care very much about. Having these guys drag out their lives decade after decade costing the taxpayer money while doing nothing of economic or human value is a tragic waste.
If we let a bunch of the old lags out, will some of them reoffend? Sure. Will a few of those offenses be nasty and headline-grabbing? Of course. But as you correctly observe, all human systems make mistakes. The fact that we will inevitably misjudge some persons we release is, in itself, no better argument against an intelligent system of release than the fact that we will inevitably make mistakes in convicting people in the first place is an argument against all punishment. I agree that in balancing the harms to defendants of incarceration against the harms suffered by victims, victim harm should probably receive greater weight. But that weight can't be infinite (as some of your rhetorical zingers inevitably imply). At some point, the pain imposed on the imprisoned and the economic costs of imprisoning them outweigh the increased statistical risk of crime posed by shorter imprisonment. I've come to think that we passed that point some time back and need to recalibrate.
A few points I would make to Professor Bowman.
1) The societal cost of incarceration to family and friends is already paid. A 50 year old man who has been in prison for 20 years is not getting the visits nor causing the heartache to his family that he did the first few years.
2) The phrase "when we lock someone up" puts the cost on the wrong party. The cost of criminal acts was decided by society long before the criminal chose to incur that cost. The pain of incarceration on the family is another consequence of crime that belongs on the shoulder of criminals, not society. The tragedy is that a man would choose a few bucks at the risk of having to leave his family, not that society would carry through with the punishment.
3) Society is harmed when we send the message that a sentence is negotiable, or that we do not have the backbone to carry through with a sentence. It does not work with children or criminals.
4) The economic benefits of letting older criminals out of prison are significantly overstated. The savings to the prison system are eaten up (and maybe more) by the social services, welfare, and medical treatment they will get on the public dole. Most of them are not rich and have not worked for decades.