Crime and Punishment in American History - Lawrence M. Friedman [195]
This took place in 1967. Unfortunately for Lynch, he had been convicted of this same offense back in 1958. At that time he got off with two years’ probation. Now he was a second offender; the California Penal Code (section 314) ratcheted the crime up to a felony. The punishment was imprisonment “for not less than one year.” This was an indeterminate sentence; there was no maximum. In theory, Lynch could rot in prison for the rest of his life. In fact, when the U.S. Supreme Court finally heard his case, Lynch had been in prison for more than five long years. More than three of them had been spent in a maximum security prison (Folsom). The Adult Authority had four times denied him parole.
The justices obviously found this story profoundly disturbing. The “theory” of the indeterminate sentence was that it permitted “the shortening of a defendant’s sentence upon a showing of rehabilitation.” Here, for a fairly trivial crime, Lynch was liable to be jailed for life, and, in fact, had already served an appalling stretch of time. This was “so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity.”
This was the seventies. The so-called sexual revolution was in full flower. The Court was not terribly shocked by Lynch’s crime. It was not, of course, “victimless,” but “any harm it may cause appears to be minimal at most.” The “victims” of flashers run “no danger of physical injury,” and there was no “convincing” evidence of “long-term or significant psychological damage.” In many cases, it was simply an “annoyance.” The indeterminate sentence, in the Court’s judgment, had to meet standards of decency and fairness, and in Lynch’s case, it did not.bz
The Lynch case, which was followed by other cases along the same lines in California,ca illustrates dramatically what the critics from the left felt was wrong with the indeterminate sentence, if not with the criminal justice system altogether: arbitrary, heartless, unfeeling, subject to random outbursts of scapegoating rage. These critics wanted to eliminate the indeterminate sentence and replace it with definite short sentences. What we might call the law-and-order crowd—the right wing—felt, for its part, that the indeterminate sentence was too soft a device for hardened malefactors. For them, the real problem was leniency; they did not trust judges and parole officers, who (for whatever reason) let dangerous hoodlums back on the streets far too early. Like their liberal colleagues, they wanted certainty in sentencing, but they wanted definite long sentences.
What emerged was a kind of compromise: definite medium sentences. A number of states besides California (they included Maine and Illinois) simply abolished the indeterminate sentence. Under the Illinois scheme, felonies were divided into seven classes. Murder was in a class by itself. Another class was for “habitual criminals,” those convicted three times or more of a violent offense. A third was class X, which covered rape, armed robbery, and aggravated kidnapping. Then there were classes 1, 2, 3, and 4, in descending order of gravity. The judge had to imprison felons convicted of murder, class-X felonies, and some of the more serious offenses. The statute set a fairly narrow band of prison terms from which the judge had to pick. For example, burglary, a class-2 felony, called for a sentence of between three and seven years. The statute provided for extra time if the offense was “exceptionally brutal” or showed “wanton cruelty.”44
What was the actual impact of this change? Judicial discretion was of course not totally eliminated. Did determinate sentencing affect fairness? Did it change the way prisoners felt about the system—reducing cynicism and encouraging rehabilitation? One study tried to measure the impact of the system on the attitudes or behaviors of prisoners.45 The study found no impact at all.