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Costs of harsh sentences now surfacing

Feb. 11, 2013 @ 11:25 PM

Forty years after he was convicted for his involvement in two murders committed by Charles Manson, a California parole board has found that Bruce Davis is suitable for parole. His crimes, if it matters, didn't involve the notorious murder of the pregnant Sharon Tate; he participated in the killing of a musician and a stuntman.

Early on, Davis claimed he was simply a bystander. A jury didn't agree. Since then, he has acknowledged shared responsibility. He has also been a model prisoner. He became a born-again Christian. He earned a master's degree and a doctorate in the philosophy of religion. He ministered to other prisoners.

Is that enough?

If the purpose of prison is to rehabilitate or incapacitate dangerous offenders for our protection, then Davis is a safe bet. The grainy picture of him today bears no resemblance whatsoever to the scary-looking guy from 40 years ago. Arrest rates for those 65 and older top out at around 2 percent. Recidivism rates are the lowest for older offenders.

I'm not afraid of Bruce Davis.

On the other hand, I hardly think he has any "right" to freedom. He was involved in the senseless and brutal killing of two men. He was sentenced to life without parole. He got what he deserved.

The harder question is what do we deserve.

Given the popularity of mandatory minimums for drug offenses and three-strikes-and-you're-out laws, it's not surprising that America's prison population is aging. The numbers are striking. Between 1995 and 2010, the number of inmates 55 and older grew almost seven times as fast as the prison population as a whole. Estimates predict that by 2030, a third of all prisoners will be over 55.

Keeping older prisoners locked up beyond the point where they are dangerous to anyone is, in a word, expensive. Very. They not only get room and board, but also medical care, which they do have a right to. There are no co-pays and deductibles in prison. If they become infirm, facilities have to be adjusted to be handicap accessible.

I'm sure I'll get letters from prisoners and their families telling me just how awful the health care is, but the fact is that courts have repeatedly ordered that prisoners have a right to have their health needs met. Maybe not a transplant, but dialysis, medication, chemotherapy and the like.

Davis is, in many respects, an easier case than most. He was involved in two murders. There may be no case left for incarceration on grounds of incapacitation, and he can certainly claim that to the extent that one purpose of prison is rehabilitation, that purpose has been served. But life without parole is hardly an unjust punishment for two murders, whether he was the one who pulled the trigger or assisted in the killing. He was not an innocent bystander. He was -- is -- a murderer.

But many of those in prison are there for drug offenses or for multiple non-homicide offenses that they are unlikely to repeat and that do not bring letters from family members or prosecutors opposing parole. They are not murderers, much less notorious ones. So why are we spending a fortune -- and providing better health care than many on the "outside" receive -- to keep them incarcerated? How does that help us?

The political debate about crime for much of the past 30 years has been dominated by fear of politicians that they will be perceived as anything less than "tough on crime." In the wake of terrible events, who wants to be the one standing there saying no to a three-strikes law, no matter how poorly it is drafted? Who wants to say that the penalties for possessing and selling drugs (and I'm not talking about marijuana) are too low or shouldn't be increased? The easy vote is always the yes vote.

But the chickens are coming home to roost, and if you'll pardon me, they are not spring chickens. The consequences of treating crime as an issue of values and not policy, as we have, are not only the explosion of the prison population, but also the graying of it. At some point, we are going to have to face the hard questions, if not in the notorious case of Bruce Davis, then in hundreds more where the criminal is less notorious and the case for continued incarceration much weaker.

Susan Estrich is a syndicated columnist. To learn more about her, go to the website at www.creators.com.

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