The case of Weldon Angelos raised similar proportionality objections from his sentencing judge. Angelos was required by law to receive a sentence of at least 55 years (660 months) for carrying a gun to two $350 marijuana deals and for having an additional gun in his house. His sentencing judge noted this was more than double the required sentence for a kingpin of a major drug trafficking ring in which death resulted (293 months), an aircraft hijacker (293 months), a terrorist who detonates a bomb in a public place intending to kill a bystander (235 months), a racist who attacks a minority with the intent to kill (210 months), a spy gathering top-secret information (210 months), a second-degree murderer (151 months), a kidnapper (151 months), a saboteur who destroys military materials (151 months), a marijuana dealer who shoots an innocent person during a drug transaction (146 months), the rapist of a 0o-year-old child (135 months), and a child pornographer who photographs a 12-year-old in sexual positions (108 months)."
It is not just drug sentencing that exhibits this kind of disproportionality, It makes little retributive sense for a woman who forged a $200 check to receive a 20-year sentence. It is similarly inconsistent with retributive notions for a man who lent his car to friends who committed a burglary that resulted in a death to receive a life sentence when intentional killings typically receive less. In Louisiana alone, more than 300 people are serving sentences of life without parole despite never having been convicted of a violent crime.
Or consider the irrationality of treating child pornography more seriously than the actual molestation of a child. Senator Debbie Stabenow of Michigan has pointed out the absurdity of a system where "a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years." In Arizona, Morton Berger, a man with no prior criminal record, ended up with a 200-year sentence for child pornography. One of the justices on the Arizona Supreme Court observed the irrationality of the state sentencing scheme, where "the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault. A presumptive sentence for possession of two images of child pornography ... is harsher than the sentences for second degree murder or sexual assault of a child under twelve.
With results such as these, it is not surprising that a report commissioned by the Department of Justice found that lengthy prison sentences are not the best way to deter crime. A 2016 report by the president's Council of Economic Advisers concurred, concluding that "research on the impact of sentence length has found that longer sentences are unlikely to deter prospective offenders or reduce targeted crime rates." What makes a larger difference on behavior is improving the odds that someone will serve a sentence. That is, certainty of punishment matters more than severity for deterrence.
Consistent with these findings, we have seen state after state reduce sentence lengths without an increase in crime rates or recidivism. Seven states put fewer people in prison while also experiencing decreases in their crime rates: California, Maryland, Nevada, New Jersey, South Carolina, Texas, and New York. California is a particularly striking example; from 2006 to 2012, it cut its prison population by 23%, and violent crime fell by 21%. Texas also saw its violent crime, property crime, and recidivism rates fall while shrinking its prison population. Indeed, states that lowered their incarceration rates have seen a greater drop in their crime rates than the states where imprisonment rates have increased. West Virginia, for example, increased its incarceration rate more than any other state but experienced a 6% increase in crime.
The federal system likewise shows that sentences can be lowered without affecting crime rates and recidivism. In 2007, the U.S. Sentencing Commission reduced the sentencing guidelines for crack cocaine offenses by two levels (roughly 20%) and applied the change not only to future cases, but retroactively so that those in prison for crack offenses could petition to receive the reduction. The commission then studied the recidivism rates of those offenders who received the reduction with a comparable group of crack offenders who were released before the effective date of the amendment, so ended up serving their full sentences. The commission found that, even years after their release, there was no statistically significant difference between the two groups when it came to recidivism rates. The group receiving the shorter sentences had a 43.3% recidivism rate, and those who served the longer sentences had a 47.8% recidivism rate.
In fact, longer sentences can actually threaten public safety. The Charles Colson Task Force on Federal Corrections found that, "absent effective rehabilitative programs, the experience of incarceration can be criminogenic, or likely to cause the very behavior it is punishing." Programming is often nonexistent in prison, so the criminogenic effects of prison are typically not counteracted by affirmative benefits. The longer sentences people serve, the harder it is for them to reenter successfully into society. People who have served long periods of time in prison have a difficult time adjusting to an environment that is not highly controlled because their social skills and ability to make independent decisions atrophy when they are incarcerated. One study using data from Texas found that each additional year of a prison sentence caused a 4 to 7% increase in an individual's recidivism rate once he or she was released. Another study of juveniles in Chicago found that detaining them increased their likelihood of recidivism after release by 22 to 26%.
Longer sentences also put a strain on limited prison resources, thus making it less likely that there are enough rehabilitative resources to go around to all those who need them in prison. For instance, a recent study of federal prisons found that the demand exceeded the capacity for many programs found to lower recidivism and assist with reentry. These programs include GED programs, postsecondary education, vocational training, and treatment programs for sex offenders. The overcrowding caused by longer sentences has deleterious effects even apart from the strain it places on rehabilitative resources; overcrowding itself causes behavioral problems in people in prison.
We also know that long sentences bring diminishing returns because most people will age out of crime in any case. For most crimes, the likelihood that someone will continue committing them once they hit 40 is negligible. Most juveniles discontinue their criminal activity after brief experimentation with it. People who commit property crimes tend to stop in their 20s, and people who commit violent crimes typically cease those activities in their early 30s. Drug trafficking also tends to taper off sometime in an an individual's thirties. More than half of all people arrested are under 30 for the majority of the crimes the FBI tracks. and research shows that for the eight most serious crimes tracked by the FBI, adults tend to commit them over a 5- to 10-year period and then stop.
There are exceptions. Financial fraud is most likely among those 41 to 50 years old, and more than half of cases involve an individual who is more than 40 years o1d. That is because "older professionals occupy positions with authority and more access to company resources. While most sex offenders reoffend less frequently as they get older, with the peak years for rape offenders occurring between 25 and 29 and declining thereafter, one exception is extra-familial child molesters, who do not see a decline in offending rates until age 50. Indeed, child molesters actually see their rates of offending increase between ages 20 and 40. Individuals also do not apppear to age out of gambling along the traditional lines.
But for most other crimes, especially violent ones, individuals cease the activity in their 30s, if not before. Thus long sentences for most offenses may not be doing anything after the offender reaches a certain age, other than costing the state money that could be better used for other law enforcement purposes.
Given these facts, it is unsurprising that studies analyzing the relationship between crime rates and prison expenditures show that increasing sentences does not always bring a reduction in crime. While the increase in incarceration from the early 1970s to early 1990s may be responsible for between 6% and 25% of the crime reduction in that period, the continued growth in prison expenditures in the 1990s had no statistically significant relationship with a reduction in violent crime. An analysis of the prison population growth studies from before and after the mid-1990s concluded that the reason for the difference is that the increase in prison growth in the latter period was largely driven by an increase in the incarceration rate of people committing drug offenses and low-level crimes. For this group in particular, the crime-increasing effects of incarceration might outweigh any deterrent or incapacitation effect of imprisonment.
While there is no denying that incapacitating someone prevents them from committing crimes outside the prison, if the person was going to stop committing crimes in any event because they were going to age out of crime (as the studies show), there is no point in incapacitating them beyond the point at which they would otherwise age out of their criminal behavior. To do so is to spend money without a corresponding benefit. Moreover, any incapacitation benefit lasts only as long as the person stays incarcerated. And although politicians often speak as if people get sent away for the rest of their lives, the reality is that more than 95% of the people sent to prison are released. Since 1990, an average of almost 600,000 prisoners have been released to the community each year. So any incapacitation benefit that we get while someone is incarcerated has to be weighed against the likelihood that the person might be a greater danger to society when he or she comes back out because the longer that person spends in prison, the more likely it is that his or her reentry will be a bumpy one. A comprehensive summary of the research concluded that "incarceration certainly reduces crime outside prison as long as it lasts, but appears to cause more crime later."
These downsides explain why there is now a growing body of research showing that increases in incarceration reach a tipping point whereby incarceration is not associated with reductions in crime but is instead correlated with increases in crime rates. For example, longer sentences were associated with a 4% increase in recidivism for low-risk offenders, and a 3% increase overall. Daniel Nagin, a professor of public policy and statistics at Carnegie Mellon and an elected fellow of the American Society of Criminology, notes: "Prisons are good for punishing criminals and keeping them off the street, but prison sentences (particularly long sentences) are unlikely to deter future crime. Prisons actually may have the opposite effect: Inmates learn more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment." As one commentator put it, "After a certain point, as prison populations continue to grow, the benefit of incarceration declines and reverses, and you even see crime increase. That seems to me to be where we are now."
Rachel Barkow " Prisoners of Politics: Breaking the Cycle of Mass Incarceration" (2019)
