On Super Bowl Sunday, Donald Trump’s reelection campaign aired an ad that would’ve been unthinkable for a politician during the 1980s or ’90s. It touted the clemency granted to Alice Johnson, an African American who was serving a life sentence for a drug offense, stoking hope among critics of mass incarceration that the early release of at least some people from prison is now broadly palatable. The president touted criminal-justice reform again in his State of the Union address last night.
Yet Trump has so far ruled on only 204 clemency requests, The Washington Post reports, “the slowest pace in decades.” Mandatory minimum laws still force judges to impose sentences longer than what they see as just. And parole boards and clemency commissions at the state level, where most inmates are held, often have their recommendations rejected not only by politicians who believe in mass incarceration, but by reformers who fear making any false step.
In Louisiana, for example, Governor John Bel Edwards, a Democrat, made criminal-justice reform a plank of his campaign. “Since taking office, he has signed 34 commutations of sentence, allowing people convicted of serious violent crimes to be released on parole after decades behind bars,” the Baton Rouge newspaper The Advocate reports. “That’s a significant increase over the three granted by his predecessor, Republican Governor Bobby Jindal—but still only 16 percent of the 207 positive recommendations forwarded to his office from the Louisiana Board of Pardons and Parole, which completes its own stringent review process … Just 3 percent of all applications for sentence commutations received since 2016 have been granted thus far.”
The national dearth of timely second chances belongs at the center of American politics. At the scale that the United States locks up its residents––roughly 2.3 million people are incarcerated in this country at any given moment––punishments that are even slightly too onerous impose staggering costs. If the average prisoner were incarcerated for just one month longer than deserved, that would mean 191,666 years of unwarranted time behind bars at a direct cost of about $6 billion to taxpayers.
So I’ve been pondering what it is that informs Americans’ intuitions about whether a person in a given case deserves a second chance. And I now fear that we get something very basic tragically wrong.
Let’s back up to Barack Obama, who commuted the sentences of more than 1,000 individuals, more than the previous 11 presidents combined. He later explained that “each of them earned a second chance—whether by obtaining a GED, taking vocational programming to learn skills for future employment, or addressing the substance abuse that so often had led to their criminal conduct.”
That criterion squares with the seemingly common-sense notion put forth in 1970 by the philosopher Joel Feinberg. “If a person is deserving of some sort of treatment,” Feinberg wrote, “he must, necessarily, be so in virtue of some possessed characteristic or prior activity.”
But that common-sense standard is wrong. The University of Arizona philosopher David Schmidtz writes in his 2005 book, The Elements of Justice, about what he regards as a common mistake in judgments of who deserves what. “It is conventional,” Schmidtz writes, “that what we deserve depends on what we do, and that we deserve no credit for what we do until we do it.” But as he sees it, counterintuitively, “We sometimes deserve X on the basis of what we do after receiving X.”
Schmidtz does not discuss criminal justice. But in other contexts, people are perfectly comfortable with his logic. “Upon receiving a surprisingly good job offer, a new employee vows to work hard to deserve it. No one ever thinks the vow is paradoxical,” Schmidtz writes. “No one takes the employee aside and says, ‘Relax. There’s nothing you can do. Only the past is relevant.’”
In this scenario, it’s perfectly normal for a job applicant’s worthiness—moral philosophers use the term desert—to be judged after the fact. “If we look back, a year after hiring Jane, wondering whether she deserved the chance, what do we ask? We ask what she did with it,” Schmidtz writes. “When we do that, we are looking back even while looking at what happened after she received X.” In other words, what determines whether people deserve some opportunities is whether they use them well. “We deserve them by not wasting them––by giving them their due, as it were,” Schmidtz argues.
In another supporting hypothetical, two high-school students receive a scholarship to attend college. One works hard and excels academically. The other parties a lot and is expelled for cheating. “Does their conduct tell us nothing about which was more deserving of a scholarship?” Schmidtz asks. Both students may have been equally qualified, having received identical grades in high school, or equally unqualified, having been chosen by clerical error. “The difference is subsequent performance, not prior qualification,” he argues. “What grounds our conviction that one is more worthy of the scholarship qua opportunity is that one student gave the opportunity its due; the other did not. Again: We sometimes deserve X on the basis of what we do after receiving X.”
What does all this mean for prisoners? Insofar as the conventional approach to judging desert governs our intuitions about whether they deserve a second chance, Americans should worry that we give too few of those chances––that some prisoners who would, if released, prove to deserve the opportunity instead remain locked up behind bars, unable to show that their release would be merited.
I’m afraid things are still worse. The criminal justice system routinely does render judgments about what a prisoner deserves based not on what he has done in the past, but on what he is presumed likely to do. It’s just that the forward-looking sense of desert is reliably applied only when it cuts against release, as when a person who has behaved well in prison is denied parole or clemency purely because of the fear that he or she might commit more crimes and prove undeserving. Of course, justified fear of recidivism all by itself is often an excellent reason for denying early release. But a symmetrical approach would require that forward-looking desert be weighed as significantly as potential recidivism is. The likelihood of making good on the second chance would be a near guarantee of early release—with political consequences when it was denied.
Yes, this promissory sense of desert involves some risk. Society has no sure way to know who is deserving. Some prisoners will be given opportunities that they don’t turn out to deserve. But it is equally true that if no opportunities are given in this forward-looking fashion, some will be denied opportunities even though they would have proved deserving. How many who would prove to deserve their freedom should stay locked up to prevent the release of one who would prove undeserving?
The notion of “just deserts” may not be written into statute. But it informs statutes along with the judgments of voters, district attorneys, judges, wardens, parole boards, and governors as they influence time served. Empirical questions are also relevant. How likely is recidivism? What are the effects of different penalties on deterring crime? How much time is needed to rehabilitate someone? No one factor that informs how long we imprison people would end mass incarceration.
Still, if Americans were better attuned to the way promissory desert squares with our moral intuitions, and the implications that has for the decisions made by prosecutors, judges, parole boards, and politicians, our new understanding of that single factor, applied throughout the criminal justice system, might add up to saving billions of dollars and imprisoning people for hundreds of thousands of years fewer.