What if the Longest Someone Could Go to Prison in America Was 20 Years?

In the summer of 2011, Anders Breivik set off a bomb in Oslo, the capital of Norway, and then took a ferry to a nearby island, where he shot scores of young people with a pistol and an automatic rifle. The final death toll of his day of terror was 77 lives. His penalty? Twenty-one years in prison.   

With the exception of war crimes or genocide, Norway's most severe sentence for a crime is 21 years behind bars. There is no death penalty. Such an outcome for an act like Breivik's is unthinkable in the United States, where people can receive life sentences without parole for stealing a jacket or low-level marijuana dealing.    

But Marc Mauer, the executive director of the Sentencing Project and a leading expert on criminal justice reform with over 40 years of experience, thinks that the U.S. could benefit from a similar model. In fact, he thinks the U.S. could outdo Norway.

In a new article for Democracy Journal, he proposes a 20-year cap on prison sentences, with an exception for mass murder. He argues that this ceiling would help end mass incarceration, which has provoked enormous debate over the past couple of years, while establishing a more effective and virtuous way of cultivating a safer society.

Mic called Mauer to discuss his provocative idea, and how he came to the conclusion that such a mild sentencing cap (which would, in turn, apply downward pressure to less serious offenses) could realistically ensure public safety. The answer entails grappling with much deeper questions about the very purpose of punishment, and whether the criminal justice system in the U.S. should be geared toward focusing primarily on rehabilitation rather than satisfying a cultural urge to punish and isolate people who have violated the law.

Mic: Nationally, one of every nine people in prison is serving a life sentence. That sounds like overkill. But I imagine 20 years will still strike even a number of people quite optimistic about the ability of humans to reform as rather short in the case of severe crimes. Can you explain how you came to the idea for capping the maximum at 20 specifically?

Marc Mauer: Well, I think the actual number is subject to some debate — there are people who would even make the argument for making it 10 years. Generally speaking, the risk of involvement of crime goes down significantly even after 10 years. But for very serious crimes, there's certainly some public sentiment for longer sentences because of how we've been cultured in recent decades.

So 20 years seems like a reasonable starting point for consideration. As I point out in my piece, you can see this in some other nations — in Norway, the maximum sentence is 21 years. There are models of other nations that look at this differently, where that seems to be a reasonable figure and has been developed over many years.

Let's say somebody is nearing the end of their 20 years in prison, and they still have huge behavioral problems. What then?

MM: I think one can put some precautions or safeguards in place. If we take extreme cases — a serial rapist who has refused to partake in any treatment in prison and doesn't demonstrate that he has changed his ways of thinking and propensity to violence, it seems then you could have a system whereby you might hold that person past 20 years for a specific amount of time with a plan in place as to how you would move toward release. That could involve active participation in treatment or demonstrated behavioral change.

I think the number of such cases are likely to be relatively modest, but you could have either a parole board or a board comprised of mental health experts make some of those determinations. And it would also be an obligation on part of the corrections system to provide whatever services and treatment are necessary to better prepare the person for release whether in five years or some other period of time.

You talk in your piece about how long sentences aren't an appropriate way to deal with crime since people often grow out of criminal tendencies. Could you explain that theory?

MM: Generally speaking, crime rates, particularly for young men, rise pretty sharply in the late teens until about the early 20s, but then decline fairly rapidly starting in the early to mid-20s. This cuts across lines of race and class. Whether this is hormonal or cultural or whatever the factors are that make this happen, they're well-established patterns.

Much of the reason these rates of involvement in crime decline by the mid-20s is people take on adult roles. They get married, they have jobs, they have peer networks. They have become adults. They have more positive rewards in their lives that outweigh what they used to get out of hanging out with their teenage friends and getting into trouble sometimes. We also know from brain development research that people's brains are not fully developed until the age of about 25, and this affects impulsivity among teenagers. It affects the ability to appreciate the consequences of one's own actions — long-term vision. Once we get that full brain development in the mid-20s, it contributes to a lower risk of involvement in crime.

It's not to say that a 30- or 40-year-old would never be involved in crime. We clearly know that's not the case. But if you think about our investment in public safety, you know after the age of about 30 or 35 it's very much a case of diminishing returns: each successive year we keep them locked up, we prevent less crime.

If we're spending $30,000 a year to keep a 50-year-old in prison, how much crime do we prevent? Suppose we invested that $30,000 in programs to keep high school kids from dropping out — how much crime would we prevent there? There's a fair amount of research that suggests that early intervention can be much more cost-effective and certainly more compassionate than continuing to expand imprisonment.

The war on drugs is usually blamed for America's high incarceration rates, and it's been the main target of reforms proposed over the past year by Democratic lawmakers. But in fact, you argue that ending the war on drugs isn't a central priority for ending mass incarceration.

MM: Well, I wouldn't discount the significance of the war on drugs — there's been a broad critique of the ineffectiveness of it, the overreach of the war on drugs, the lack of compassion of its approach. And the number of people in prison for drug offenses is not trivial by any means — roughly one in five people in prison today is there for a drug offense.

But while there is much we could do to revise drug policy and particularly to reduce the use of imprisonment for substantial numbers of drug offenders, ending the drug war as it has been waged in itself won't end mass incarceration.

So what are the main contributors to mass incarceration?

MM: In broad terms, it has been a series of policy choices made over the last four decades. This approach to public safety has been to send more people to prison and keep them there for longer period of time. That's been a very conscious strategy, both at the federal level through Congress, and essentially in every state as well.

There's variation in rates of incarceration across the country, but every state has had a dramatic rise in the use of imprisonment since the 1970s. The best research we have shows that this is primarily due to changes in policy, not changes in crime rate. Whether it's been stated consciously or not, the means of dealing with inequality and addressing public safety, particularly in disadvantaged communities of color, has been to ramp up the criminal justice system as opposed to creating opportunity.

You cite research in your article that shows that since the 1980s half of prison expansion is due to mandatory sentencing policies and prosecutorial charging decisions, and half is from longer sentences. How did that come about?

MM: It's a mix of policy and decision-making in politics. At the extreme edges of things, policies like "three strikes and you're out," requiring as much as a lifetime sentence on your third felony charge in many states, have resulted in individuals spending far more time in prison than they would have if a judge had the ability to impose an individualized sentence.

One of the classic current cases is Weldon Angelos, a music producer in Utah and also a mid-level marijuana dealer. He had three marijuana sales to an undercover agent, and during the course of the sales he also possessed a gun — it was hidden in his sock during the course of the transaction, although he never used it or threatened to use it. But under federal mandatory sentencing laws, the judge was required to sentence him to 55 years in prison, which he is currently serving. The total value of the marijuana he sold was about $1,000.

We get extremes like that that come about and also in many cases cut-backs in parole release which are often politically motivated in many states. Much of that has to do with state-level politics and how governors are positioning themselves on crime issues.

There's also the issue of prosecutorial charging decisions. Many prosecutors very publicly say that they need and support mandatory sentencing because it makes easier for them to secure conviction. In plea negotiations, prosecutors have always been able to threaten the defendant with so much time in prison, but give them some relief if they plead guilty.

The length of prison terms for many offenses is a hammer that they're holding over the defendant's head, and so it's both more likely they can get pleas or pleas for longer period of time in prison, because the alternative in harsh cases can be decades in prison. In many cases there are prosecutors who are using their judgment appropriately and with compassion, but in many cases their success is measured by how many convictions they get and how many people are sent to prison, not by whether justice has been served in a given case, so there's been incentives to move toward harsher sentencing and greater use of incarceration.

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