I had to wait twenty pages until the Court of Appeal finally answered the question that was foremost in my mind. But then I finally got to it: "D. Our Interpretation of Section 3051 Does Not Give
Youth Offenders a “Free Pass” to Commit Crimes in
Prison."
Except it sort of does. Sort of.
The Court of Appeal says that you don't have to serve the sentence(s) imposed upon you for your in-custody adult offenses if you're found "suitable for parole" for the serious crimes you committed when you were a minor. For example, in the present case, Mr. Jensen was sentenced to 25 years to life for first degree felony murder, an offense he committed when he was 19. Then, in prison, he assaulted a guard with a deadly weapon, and was also convicted of prison escape and possession of a weapon. He received a total of 7-plus years for those adult offenses.
Since he was a kid when he committed the "main" offense, he's entitled to an eventual hearing to get released when he's "suitable" for parole. After a long time, the parole board finally concludes that Mr. Jensen satisfies these guidelines -- though he had trouble in prison early on, he's been discipline-free for a while, so they think he's changed, and ready to be let out.
The question then becomes: Does he then have to serve the 7 years for his adult in-custody offenses?
The Court of Appeal says he doesn't. The dissent says he does.
Section D of the opinion is all about the incentive effects of today's holding. The Court of Appeal says that an offender will still have good reason to be nice in prison because any offenses therein will still go towards his eventual "suitability" for parole in the long term.
As I said before: Sort of.
It's true that you wouldn't want to keep committing crimes in prison forever, because then the Parole Board would never conclude that you've been rehabilitated. But that doesn't mean that this decision doesn't give you a little bit of a free pass. It does.
Because while you need to stop committing crimes in prison at some point to demonstrate that you're now suitable for parole, that's only at the end. Take the present case, for example. Sure, Mr. Jensen eventually had to be good -- for a long time, even -- to demonstrate that he should be let out. But at the outset, under today's decision, there's very little reason for him to refrain from committing further crimes in prison. He's convicted for a murder when he's 19 and sent to prison. Why not stab a guard as well when you're 20? Sure, you might be sentenced to another 10 years. But as long as you then "stay clean" for, say, another 20, the fact that you stabbed a guy 20 years ago doesn't really matter at all to the eventual suitability determination. It doesn't add anything at all, really, to the preexisting fact that you murdered someone a year earlier. It's just what you did "a long time ago," so if you do not have to serve your sentence for that additional offense, that's pretty much the definition of a "free pass" to commit additional crimes.
Do you eventually have to stop stabbing people? Sure. If you stop stabbing them earlier, will you maybe get a slightly different suitability date? Maybe. So there may be some incentive effects that remain after today's opinion.
But there's still a bit of a "free pass," especially early on in your initial sentence. And in any event, we shouldn't expect prisoners -- much less kids convicted of serious offenses like murder -- to be completely and totally rational in their decision calculus. I can easily see someone telling a kid who has just recently been sentenced to prison: "He's a shank. Stab the guy. Even if you're caught, you won't have to do the time. Read this opinion." Prison lore ain't exactly perfect. I could easily see a youthful offender thinking that, yeah, there's no real downside to committing the offense, and hence doing so -- or at least being marginally more willing to do so -- after this opinion. Especially since kids aren't exactly awesome at long-term reasoning or at recognizing subtle eventual consequences.
So, yes, maybe it's inaccurate to say it's a total "free pass" to commit future crimes. But it's certainly a heavily discounted pass. And, in some cases, may well entail a completely free pass as well.
Either of which you'd expect to have actual consequences in the long term.
That's not to say the Court of Appeal's statutory analysis is necessarily wrong. There are two statutes here that at least facially conflict, and you've got to make sense (if you can) of both of 'em. That you think that reading 'em one way will result in certain policy consequences doesn't necessarily decide how they get read.
But you do have to recognize the likely results of your holding. And, on that point, I'm not entirely certain that section D of this opinion is entirely persuasive. Because it will result in more crimes via diminished incentives. Of that I'm relatively confident.
Technical "free pass" or no.
