Last week, while defiantly declaring the end of California’s prison crisis, Gov. Jerry Brown insisted further reductions in prison overcrowding “cannot be achieved without the early release of inmates serving time for serious or violent felonies,” a move that would “jeopardize public safety.” In other words, now that Realignment is sending low-level offenders to local custody instead of state prison, those who remain in prison need to stay there to protect the public.
This unfounded assumption is used to justify a large and growing mass of the state’s unnecessary incarceration. Most serious and violent offenders do need to serve some time behind bars to protect the public, but we keep them there for far too long. And the terms are only getting longer. If California wants a sustainable solution to its prison crisis, it needs to rethink its increasingly harsh sentencing policies across the gamut of offenses – not just the low-level targets of Realignment and Prop 36.
A recent study found that California offenders who committed violent crimes can now expect to serve seven years in prison – in 1990, they would have served less than three. Looking at people who committed murder, those who were released in 2009 served an average of 16 years; now, they can expect to serve more than 50 years. This lengthening of sentences for violent crimes is a major reason California’s prisons are overflowing and will continue to do so. In 2009, nearly 100,000 of the state’s prison inmates were doing time for violent crimes, a number that will only grow as the exit door continues to recede.
A major driver of these long sentences is sentencing enhancements – additional prison time for circumstances such as using a gun, gang involvement, and repeat offending, aimed at targeting people thought to present a high risk to society. Although Three Strikes has received the most notoriety, an equally draconian California sentencing enhancement is 10-20-Life – “Use a Gun and You’re Done.”
Under 10-20-Life, anyone older than 13 who uses a gun while committing a serious felony (including robbery, homicide, kidnapping, and many sex crimes) will serve harsh sentences on top of the “base” sentence for the crime: 10 extra years for brandishing a gun, 20 for firing the gun, and 25-to-Life if firing the gun results in serious injury or death. These “enhancements” are often longer than the time served for the crime itself.
For example, someone who commits or attempts second-degree robbery would serve, at most, five years if no gun was present. If the offender fires a gun during the robbery, he will serve 25 years, an enhancement four times longer than the base sentence. A person convicted of first-degree murder with a gun will be sentenced to at least 50 years-to-life, twice the sentence of one who killed using another method, like strangulation, poison or an ax. The enhancements are mandatory and cannot be struck by a judge; the only way to avoid them is to waive your right to a trial and plea bargain.
Gun enhancements are appealing alternatives to gun control because they purportedly take out only the “bad guys” who use guns – not the “good guys” who merely shoot guns for healthy fun and games. Extremely harsh enhancements are thought to enhance public safety by: 1) deterring people from committing crimes with guns, which are much more likely to result in serious injury or death, and 2) incapacitating criminals who use guns.
But this logic is simply not supported by evidence. Research shows that the deterrent effect of punishment is linked to the certainty, not the severity, of punishment. Incapacitation is less theoretical – the offender is not likely to commit additional crimes while incarcerated – but the number of crimes prevented by locking up such a diverse group of people is difficult to estimate. Incapacitation also offers diminishing returns as the prisoner ages, as criminal behavior rises throughout the teenage years, peaks in the mid-20s, and then drops precipitously after 30. Recidivism rates also drop steadily throughout life.
Moreover, a report by the National Research Council found no clear evidence that gun enhancements affect gun-related crimes, and concluded that those that had found any crime reductions were “difficult to interpret.” Other studies have come to similar conclusions.
For the offender, longer is certainly not better: As the years go by, prisoners often become more distant from their families and communities, less employable, and more deeply ingrained in prison culture (becoming “institutionalized“), all factors that hamper reentry.
Though the public is not likely to see less crime due to 10-20-Life, they are footing what is likely to be an enormous bill, as the enhancements keep offenders behind bars well into old age. California already spends more than $50,000 per year to house each prisoner, and that figure doubles for prisoners aged 50 and older. A 2003 estimate (which assumed prisoners would cost a modest $35,000 per year) predicted that by 2025 the CDCR would pay at least $4 billion per year for elderly prisoners alone. That’s money that could be better spent on rehabilitation, addiction treatment, and community-based programs, with a much greater payoff in public safety.
The striking irrationality of these laws demonstrates the need for a sentencing commission that can help California ground its sentencing laws in solid research. Otherwise, we will be stuck with unjustifiable and costly enhancements that result in, as criminologist Peter Greenwood writes, “thousands of defendants serving unusually long terms because somebody came up with a theory and a good bumper sticker title that captured the public’s fancy.”
Lizzie Buchen is a member of the Center on Juvenile and Criminal Justice (CJCJ) policy team. She holds an M.S. in neuroscience from UCSF and has worked in journalism and prisoner rehabilitation.