April 16, 2015
Minimizing the Maximum: Why prison sentences should be capped at 20 years
By Marc Mauer
Executive Director, The Sentencing Project

U.S. President Barack Obama recently issued sentence commutations for 22 people serving lengthy prison terms for drug offenses in the United States. Among them was Donel Marcus Clark, who received a 35-year prison term for a first-time conviction of selling large quantities of crack cocaine and marijuana in 1993 at the age of 29. Following mandatory sentencing guidelines in place at the time of his arrest, a judge sentenced Clark to a prison term far greater than the terms even for many persons convicted of violent offenses.

This case provides a window into understanding how the United States has produced a prison system that the National Research Council has deemed “historically unprecedented and internationally unique.” For a nation that prides itself on its democratic traditions, this is a dubious distinction. Furthermore, these developments have been a function of changes in policy, not crime rates. Essentially, the American zeal for punishment has resulted not only in more individuals being sentenced to prison, but also in keeping them there far longer than in comparable nations.

At the deep end, 160,000 people – one of every nine people in U.S. prisons – are now serving a life sentence, and many more are serving “virtual” life sentences of 50 years or more. Such developments are not only inhumane in their disregard for the possibility of individual reform, but are also counterproductive for public safety goals.

To give some perspective to these sentences, consider that in 2013, the European Court of Human Rights ruled in a U.K. case that whole-life sentences without the possibility of review violate human rights standards and must include a parole review provision. At the time of the ruling, there were 49 individuals serving such prison terms, compared to 49,000 serving life without parole in the United States.

In order to achieve a more appropriate balance in approaches to public safety, policymakers in the United States and elsewhere should consider a proposal to limit the maximum term of imprisonment to 20 years, except in unusual circumstances. Such a policy would enhance public safety goals by freeing up resources for more effective interventions.

The primary problem with decades-long sentences is that they produce diminishing returns for public safety. The key reason for this is that offenders generally “age out” of crime. The risk of involvement in criminal activity rises in the late teenage years through the early 20s, but then declines sharply as individuals mature. By the time adults reach their 30s or 40s, their likelihood of committing a crime is just a fraction of what it was a decade or two previously.

Thus, while prison may provide some incapacitating effect for younger offenders, each successive year in prison produces a declining impact. In the United States, for example, persons released from life prison sentences – generally in their 40s and 50s – have rearrest rates lower than one-third of all prison releases.

Decades-long imprisonment is also extremely costly. As people age in prison, health-care costs rise sharply. With the dramatic increase in the number of older people in U.S. prisons, states are now moving to establish “geriatric prisons,” replete with wheelchairs and other necessities for an aging population that poses little risk of ongoing criminal conduct.

Counterproductive prison terms also divert resources from more effective means of addressing crime. Public funds spent on prisons are not available to invest in early childhood education, therapeutic interventions for at-risk youth, and substance-abuse treatment, all of which can produce better outcomes in crime control.

Some would argue that certain individuals pose such a threat to public safety that they require prison terms of more than 20 years. For such cases, governments can establish a review process at the end of a 20-year term to determine whether an individual still poses a significant risk. If they determine that the person does, confinement in a prison setting or mental hospital, as appropriate, could be continued for a specified period.

This is the practice in Norway, which limits prison terms to no more than 21 years. The Norwegian justice system applied this policy to Anders Breivik, for instance, the far-right terrorist who brutally killed 77 people in 2011. Note that even if Breivik is released after 21 years, Donel Clark will still have served more time (26 years) for his drug conviction.

Other sentencing regimes apply similar provisions. Belgian law requires a parole review of life sentences after 10 years, Germany after 15 years, and the International Criminal Court at 25 years. In addition, the Vatican recently abolished life sentences from its criminal code, with Pope Francis referring to such penalties as “a hidden death sentence.”

While punishment has long been considered a goal of sentencing policy, in nations like the United States it has come to overwhelm goals such as rehabilitation, prevention, and fairness. By placing an upper limit on the severity of sentencing, we could move public policy in the direction of enhancing public safety in a manner that focuses more on constructive interventions than on imposing vengeance. Surely a humane society should want to move in that direction.

Marc MauerMarc Mauer is the executive director of The Sentencing Project, an NGO in Washington, D.C. focused on criminal justice policy reform. He is the author of Race to Incarcerate, and frequently testifies before Congress and other legislative bodies.