Legal Commentary

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.