Years and Justice

With the news of the massacre in Norway comes the news that Norway’s maximum prison term is 21 years. The self-appointed pundits are angry:

“Most murderers in Norway spend just 14 years behind bars. The terrorist is 32 years old. He will get out when he’s 53. That means he’s serving about 3 months for every person he murdered. Justice?” asked a blogger at Big Peace.

Now, there may well be arguments to make that 21 years is not enough punishment for the perpetrator of this horror. But this particular argument cannot be it. It rests upon an obviously absurd premise: that there is any number of months, or years, or decades, or eternities that would ever be commensurate to the number of persons he murdered — that would ever amount to “justice.”

And yet, I’m not surprised to see this reaction from American commentators, because the notion that a criminal’s prison term is supposed to be commensurate with the evil they’ve done is a common assumption underlying much of American criminal justice policy. Classical criminology offers four rationales for punishment: deterrence, incapacitation, rehabilitation, and retribution. In the American criminal justice system, I’d argue there’s a fifth rationale, expression, which is no less powerful for the fact that it typically goes under-articulated.

In other words, our society uses criminal sentences not just as a utilitarian device to punish or deter but also as an almost aesthetic device to express its horror at various crimes. This is why you sometimes see sentences into the hundreds of years. Biologically no criminal can never fulfill such a sentence. But that’s beside the point. The number of years is the language in which we attempt to express our ineffable horror and sorrow at man’s inhumanity to man.

In the late 1970s and 1980s, California legislators extended the sentences for various crimes in a series of bills. Last year, I went to Sacramento and read the legislative files for one such bill. In those files, I found these words, in a letter, from 1978, from a San Francisco prosecutor to a California legislator:

Citizens often are shocked when they learn of the sentences imposed under the current law. For example, under [the law] which is now in effect, if a person commits two rapes and is given the maximum term on the first rape, which is five years, he could only receive one third of the median term, or one year and four months, for the second rape. This total prison term of six years and four months would be reduced by one third for good time. Thus the total prison term for two forcible rapes would be only four years and three months. Imagine meeting in your office with the two victims in this hypothetical situation and trying to convince them that such a disposition is just.

Under [the new law], however, a defendant who commits two rapes could receive a full maximum term of 17 years in prison as his sentence. With one third off for good time the defendant would actually serve 11 years and four months.

Now, on one level, this assistant district attorney is right. It is easier to tell a rape victim that her attacker will serve eleven years than it is to tell a rape victim that her attacker will serve four years. On another level, this assistant district attorney is inevitably, always, going to be wrong. Why is eleven years enough? What number of years could ever be enough? Once you start down this road of using prison terms as a language for expressing horror and sorrow, you have started down a twisty road indeed.

SOURCE: Leo J. Murphy, Jr., ADA, San Francisco, to Hon. Kenneth L. Maddy, March 29, 1978, in Assembly Criminal Justice Committee file on SB 709 (1978), folder 2, California State Archives, Sacramento, Calif.


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