Murder Sentences Becoming “Too Flat and Too Severe,” Barrock Lecturer Says

Posted on Categories Criminal Law & Process, Speakers at Marquette

A reactor or a radiator?

A radiator performs service by dissipating heat. A reactor generates increasingly intense heat, presenting difficult challenges for how to contain that heat.

Punishment for murder in the United States increasingly resembles a reactor more than a radiator, Prof. Jonathan Simon at Boalt Hall, University of California-Berkeley School of Law, said in a lecture at Marquette University Law School Monday. And like a reactor, the trends in murder sentences are building up heat that presents increasing challenges.

Simon said murder sentences generally have become too severe. The widespread use of extreme sentences undermines moral coherence, goes beyond society’s need to incapacitate those who killed someone, and incurs excessive public expense.

Simon, who is spending this academic year at the University of Edinburgh in Scotland, delivered the George and Margaret Barrock Lecture on Criminal Law to about 150  people in the Appellate Courtroom of Eckstein Hall.

He outlined the history of punishment for murder in England and the United States since the 1600s, when British law began treating murder with and without malice aforethought in different ways. That grew into an American approach that included first-degree murder, second-degree murder, and manslaughter as crimes calling for sentences of differing severity. In the 1900s, the U.S. saw the rise of parole in which authorities, years after sentencing, determined whether it was no longer necessary to keep a murderer in prison.

But in more recent times, Simon said, the severity of sentences has increased, differentiation in sentences has been reduced, and more murderers are being given sentences such as life without parole. The difference in actual sentences between second-degree murder and voluntary manslaughter in California in recent years has been relatively slight, Simon said. And public sentiment that parole boards are letting out people who should still be in prison has made parole less frequent. Simon used the title of a best-seller by New York Times columnist Thomas Friedman to describe the state of murder punishment: “Hot, flat, and crowded.”

In his home state of California, he said, 10 percent of the state budget is spent on prisons. He said the number of inmates who will die of health problems as they age is rising and care for them is already becoming a major financial drain. He said many of them are in prison long after the point at which they are a threat to others. If they were out of prison, Medicare or Medicaid would pay for their care at a much lower cost than in prison, where the Medicare and Medicaid do not provide coverage, Simon said. While some states continue to debate whether sentences have become excessive, California is past that debate, he said.

Simon called sentences of life without parole “degrading.” He said wide use of such sentences creates nightmares for prison managers who must create “super-max” conditions to deal with inmates with little incentive to comply with rules.

He said he favored giving people convicted of first-degree murder life sentences, but, in most cases, with a provision that they will be evaluated for possible release after a set amount of time. For second-degree murder, he suggested sentences of 10 to 20 years in general. For voluntary manslaughter, sentences should average about 10 years.

As a general rule, most criminals become unlikely to commit further crimes after they have reached their 30s or 40s, Simon said, and society does not need to “incapacitate” them by keeping them locked up.

“We’re in a very bad place right now” when it comes to effective and justifiable punishment for murder, Simon said. He said it would not be easy, given political realities and popular opinion, but American society would benefit if the punishment of murder shifted toward working like radiator, rather than bottling up so much heat. 

The hour-long session with Simon can be viewed by clicking here.

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