Prison Math

Susan Estrich

Even as Conrad Murray was marched off in handcuffs after his conviction last week for involuntary manslaughter, legal analysts and the district attorney himself pointed out that Murray was unlikely to serve an "appropriate sentence." The maximum sentence for his crime is four years, but even if the judge throws the book at him on November 29, it will be largely meaningless. The truth is that he probably will serve almost no time in jail.

Why? That's the easy part. Prison overcrowding. It's a problem not only in California but across the nation. To deal with the unconstitutional problem, the legislature passed a bill called AB 109, which provides that convicts such as Murray, with no criminal record, are supposed to serve their sentences in county jails and not state prisons. But the county jails are just as crowded as the state prisons, so they routinely release those sent there literally in days or weeks, or sometimes even hours.

Consider the case of another famous wrongdoer: Lindsay Lohan. After reporting for her fifth jail sentence arising out of two arrests for drunk driving and repeated probation violations, Lohan spent about four and a half hours of her 30-day sentence in jail before going home. She reported to the jail at 8:50 p.m. and was back home by 2 a.m. According to jail officers, she skipped the meal offered to her. Imagine: no dinner.

The only unusual thing about Lohan's quick release is that we actually heard about it. As sheriff's officials explained, she was treated no differently than any other repeat offender with five jail sentences under her belt. In 2007, she spent exactly 84 minutes in jail before being released. It would not be an exaggeration to say that Lohan has spent more time coming and going to court than she has in jail. It could easily turn out that Murray will end up spending less time serving his sentence than the jurors did determining his guilt.

It's not that California hasn't been building prisons. Beginning in the 1990s, we went on a prison building spree, fueled both by the hypocrisy and gutlessness of politicians in passing harsh sentencing laws that allow them to claim they are "tough" on crime and the power of the prison guards union, for a time the fastest growing union in the state and the biggest spenders in political campaigns. But between three strikes and two strikes and even one strike, between zero tolerance and treating juveniles as adults, and throwing the book at drunk drivers, and punishing those who commit robbery in the boardroom as seriously as those who do it on the street, even the boom couldn't keep up.

Then there are the other cost issues: If you're going to deprive people of their liberty, you have to feed them and take care of their health and protect them, all of which costs as much as a year in college. Talking tough is easy. Passing "harsh" laws makes politicians look good. Paying for it all is another matter.

I don't fault the sheriffs for letting people out. They have no choice. But it breeds cynicism when the public sees convicted criminals passing through jails rather than doing the time their sentences would seem to require. The fact that the district attorney came right out and said that Murray would not serve an "appropriate" sentence is at least better than watching him go in and out without knowing in advance that he would.

The best thing about Lohan's sentence, from my perspective, was not the 30-day jail term. It was the judge's requirement that she spend 423 hours at the county morgue sweeping floors and cleaning bathrooms. If Murray isn't going to spend four years in prison, he should at least spend that time doing something equally unpleasant. For years, serious students of the criminal justice system have argued that we need to develop alternatives to incarceration that actually punish people for their crimes without punishing the taxpayer at the same time.

Observers of the Conrad Murray case speculate that the judge probably ordered him to be marched off to jail pending his sentencing on November 29 because he knew that once he was sentenced, he wouldn't be spending much time in jail. The optics of seeing the convicted defendant taken away in handcuffs at least made it seem like the punishment would fit the crime. It won't. It usually doesn't.

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