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Prison time: How long is long enough?

Jonathan Simon, professor of law | August 17, 2012

It is hard to say whether they are the worst crimes. They are the crimes that horrify the most. A baby-sitter, for no apparent reason, strangles the 15 month old child she has been hired to protect.  A professional thief shoots a young police officer in his face, while the victim is on his knees in a farm field pleading for his life, in order to avoid arrest prosecution.  The baby-sitter is only 19, and has lived in abusive foster and adoptive families all her life, but her past troubles do not excuse an unprovoked murder of a helpless person.  The thief wrongly believed that under the state’s “Baby Lindbergh” law he faced the death penalty already for kidnapping the officer (who had stopped the theif and his colleague escaping from a crime quite by accident), but that understandable failure of deterrence to operate perfectly hardly excuses the crime.  Both offenders deserve serious punishment,  the most serious available.  Assuming the death penalty is off the table, how long should they serve in prison?

The baby-sitter, Betty Smithey, just recently received parole from the state of Arizona, earned the title the longest serving woman, having been imprisoned for 49 years for the crime she committed in 1963 (read about her parole in the LATimes here). The thief, Gregory Powell, died last week after serving the same length of time, coincidentally also for a crime committed in 1963 (read his obituary in the NYTimes here).  Powell’s crime became the subject of a famous book and movie (Joseph Wambaugh’s The Onion Field), a fact which along with the fierce opposition of the LAPD may have accounted for the fact that he never did receive parole (although his crime partner did in 1983).

No doubt many would say that, at least as compared to the death penalty, or being murdered, fifty years in prison is not unacceptable. I find myself in total disagreement.  These sentences are too long, way too long.  Am I just incapable of imagining the victims perspective?  Do I just intuitively sympathize with the living soul in prison while my imagination departs unjustly from the departed?  Perhaps (at least that’s my brother’s theory), but I have two thoughts to share, one as a penologist (a student of prisons), the other as a criminal law teacher.

What purposes are served by such long sentences.  At Betty Smithey’s final parole hearing one of the Board members was quoted as saying: “I really see no value in keeping you in prison any longer. I really see no value in keeping strings on you any longer..”  But at Gregory Powell’s final parole denial (some years ago), or when the state of California denied him even compassionate release so he could die outside a prison, what value would they have cited?

No doubt the Chief of the LAPD would say deterrence in Powell’s case.  Every potential cop-killer ought to know that if they kill a cop they are going to die in prison, either by lethal injection or old age.  Really? That’s been pretty much the case for years but I would place my money on Kevlar and better training for having reduced officer deaths over the years.  If deterrence works at all in the mental illness, or drug or fear addled brains of an armed individuals about to coming into shooting range of a police officer (and Powell seems to be one of the few criminals in history who seemed to know about a special law aimed at a particular crime, too bad he remembered it wrong) there is zero evidence that anywhere near fifty years is required.

There is shockingly little empirical evidence on what lengths of time in prison are necessary to achieve deterrence, but from what we know about the equivalent (but opposite) cognitive function, from research on how much people will pay to protect themselves against large but remote risks, it appears most of us respond far more to likely but relatively minor risks and ignore catastrophic but unlikely ones.  My own intuition is that whatever deterrent value there is in a threat to be sent to prison probably maxes out at a credible threat to be locked up for some years, probably less than ten.

Incapacitation is the major rationale behind California’s uber long prison sentences.  But from everything we know about criminal careers, Smithey and Powell could have been released years earlier than the ages at which they paroled (69), or died (79).  Most criminal careers flat line after 40 (one hopes that is less true of other careers).  Neither Smithey or Powell were disciplinary problems during the last decades of their imprisonment.

Many readers will cite retribution, the punishment offenders deserve for the crimes they have committed.  Research suggests that retribution corresponds to the moral intuitions of many people about crime and punishment, and that people mostly agree on which crimes deserve more serious punishment than others, but there is no agreement or objective moral basis for determining how long is long enough.  Once you abandon the metaphoric relationship between the life taken in a murder, and the life of the offender, which is the appeal of the death penalty and whole life terms, there is no particular reason to choose any term of years (although I think ten has some metaphoric value because of the strong role of decades in our own narratives about life).

This is where penological thought kicks in.  My own exposure to long-serving prisoners over the years convinces me of two things.  First, people change. The men I meet, when I speak to classes at San Quentin, describe the men they were when they arrived at prison as profoundly different, and I believe them and can see with my own eyes who they are now.  Second, it takes time to change, but for most people it does not take more then ten years.  This makes the decades stacked on after 10 or 20 years devoid of any meaningful value.  To the prisoner facing them, stretching into the future toward death, this is “cruel and unusual.”  To the rest of us who will likely pay many times the average per year costs for incarcerating them during their old age (when medical costs cause the overall cost of imprisonment to skyrocket).

My own view is that the only reason to hold someone more than ten years is either specific information to believe that they are likely to remain a threat when released (like continued involvement in criminal gangs while in prison) or the need to mark the public condemnation of the crime (as in the case of multiple or mass killings), and even then another decade and a half ought to mark our true maximum (25 years).

My views, of course are extreme. Consider that legislation just passed, after years of efforts by San Francisco’s wonderful Assembly Member Leland Yee, designed to comply with the Supreme Court’s mandate that juveniles sentenced to Life Without Parole (LWOP) be resentenced, would establish 25 years as the minimum before a prisoner sentenced for such a crime could be released (read about it in the Sacto Bee here). Assemblymember Yee’s measure barely passed by one vote and it is not clear that Governor Brown will sign it.  I hope he does.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

Comments to “Prison time: How long is long enough?

  1. What I find to be interesting about this topic is how we define a criminal. We assume that every person who is locked within the walls of the thousands of prisons throughout the Unites States are deadly, dangerous men and women who cannot conduct themselves in everyday life outside of these institutions. However, who are these men and women who are locked in these claustrophobic cells? Who are these men and women who spend over 75% of their lives in these prisons? That, is why we need a change to this corrupted system.

    This system, based off of some parts of the law but also off of a judge’s preference of punishment, has turned corrupt and has chained those behind bars for the duration of their lives. While many crimes must be examined on a case-by-case standard, there still should be no reason as to why courts cannot even attempt at truly identifying if each prisoner’s time in the institution is making a change in their lives.

    I do believe that while some criminals will always have that rottenness within them and should spend the duration of their lives within those walls for they will cause a threat to the safety of the public. But, there are others that take the time spent alone and in fear within the cement walls of their cell to truly achieve a transformation. Whether it be ten years or 50 years, I believe that at some point there could be that transformation. And is that not the goal of the prison systems? Or can we even define what the prisons that kept appearing all throughout the 20th century were created for?

    Overall, I agree with your statements that people truly do change and that it takes time to change. What challenges me is that not every prisoner can change within those designated ten years that you allotted for them to achieve that transformational moment. Whatever the time it may take, I hope that one day the sentencing process searches for each person’s inner transformation and allows justice to those who have served their appropriate time.

    • My girlfriend I met while shes doing time was convicted on incest crime they gave her 50 years. Serving 36 of that. People who kill people get lesser time. I think the justices system does this hoping they never get out or die of health reasons.

  2. This is an interesting question Jonathan and will always be topic for debate, whether minor or major crimes are committed, reason for the crime, profile of the offender etc. I think that in order to answer this question, firstly we need to keep questioning the purpose of prison, as you quite rightly point out punishment means different things to different people.

    In my opinion imprisonment should only be used when somebody poses a threat to the public, not as a mechanism of retribution. In the most serious of crimes, say mass/serial murder some will say no punishment will ever be long enough or some will see the death penalty as an easy way out. We shouldn’t continue to use prisons as a warehousing of those who have been failed by society. Instead they should be a means to protect the public. Only once we (as society) can decide on the purpose of prison can we ask, how long is long enough.

    Suzanne (UK Criminologist).

  3. There is a 63 year old man incarcerated in a “closet size” cell at San Quentin State Prison. He was sentenced in 1999 to 25 years to life, under California’s three-strikes law, for possession and sale of methamphetamine,a non-violent offense. He’ll be eligible for parole in 2024 at age 75.Is this justice? There are about 125,000 prisoners over 55 around our nation, 14,000 in California alone.According to the National Institute of Corrections, age 50 is the criminalogical consensus of when a prisoner becomes elderly since inmates age faster physiologically, therefore requiring more medical attention thus costing the State much more for their housing than the younger inmates.I believe the three-strikes law and the incarcerating of non-violent prisoners in prisons where there is little to no rehabilitation is the major cause of prison over-crowding in California.

  4. As to Rob’s point, I suggested 25 years as the maximum based on the public need to mark the seriousness of the crime. Well-founded individualized reasons to believe that a person would pose a significant threat if released, following conviction for such an aggravated murder, would continue to justify incarceration, in my view, as long as review was frequent, thorough, and consideration given to alternative ways to reduce any risks to the community of release (like electronic monitoring).

    As to Moira’s point about addiction, the Supreme Court in the early 1960s held that holding somebody in prison for a disease was cruel and unusual punishment (Robinson v. California,370 U.S. 660 (1962). They backed off when faced with the implications of their decision, but I think their intuition was correct. Addicts who commit property crimes to support their habits should be required to enter treatment and be subjected to close supervision in the community if they continue to commit crimes, but incarcerated only as a last measure to save their lives or prevent violent crimes.

  5. Professor,

    I have read with interest your views on the appropriate length of prison sentences. You state that you feel that 25 years should be the “true maximum”. Do you not feel that in certain cases, there are those individuals who have not or cannot change and thus continue to pose a safety risk to society, and as such should be kept behind bars beyond this mark? Thanks.


  6. thank you…great topic…what is enough for a lifelong drug addict that supports the habit by robbing but NEVER hurts anyone? Life without? what good does that do? it only costs money…

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